Why Criminalize Some Conduct?

Retributivist
- Retaliation (just deserts) (culpable)
- Deontological theory (Dudley and Stevens)

Utilitarian
- General deterrence (assumes criminals are rational, do
cost-benefit analysis; but real deterrence is
internalization of the immorality of the action)
- Specific deterrence
- Incapacitation (dangerous)
- Expressive (helps society internalize norms)
- Vengeance

Actus Reus
- Includes a voluntary act: conscious willed bodily movement
- Open up time-frame to include a voluntary act (Decina 179, epileptic reflexes, operates a vehicle negligently G)
- Omission, needs legal duty to act
o Statutory duty
o Contractual duty
o Special status relationship (CL), e.g. husband-wife, parent-child
o Individual causally/morally responsible for Vs peril (Oliver 195, spoon to inject heroin G)
o Voluntary assumption of duty in a manner that secludes V from others assistance (Pope 183, takes crazy
mother and her child into house not G, no seclusion because mother was present)
Mens Rea
Common Law
Specific intent

Grading device: distinction between serious and less

serious crimes

Neiswender 217, endeavors to obstruct justice

reck/negl standard to s.i. undermine judicial process:
wrong!
Conditional Intent
- Condition negates harm statute is trying to deter?
- Condition relates to contingent future event that
might not occur violates concurrence principle
- Holloway 218, carjacking G, conduct rule: dont
carjack at all
General intent

malicious = reckless (Cunningham 204, steal gas

meter not reckless as to result of death; Faulkner
206, steal rum not reckless in setting fire to ship)

Strict Liability

MPC 2.02
Purposely
1.
actors conscious object to engage in a/r or cause
such result
2.
aware of existence of a/c, or believes/hopes they
exist
Knowingly
1.
actor is aware of a/r and a/c
2.
aware that result is practically certain

Recklessly
1.
actor consciously disregards a substantial and
unjustifiable risk that the material element exists or
will result
2.
involves a gross deviation from the standard conduct
of a law-abiding person
Unjustifiable risk
1.
Probability of harm occurring
2.
Social utility of conduct generating the risk
3.
Severity of harm risked
Negligent
1.
actor should be aware of a substantial and
unjustifiable risk that the material element exists or
will result
2.
involves a gross deviation from the standard of care
of a reasonable person
Strict Liability

Willful Blindness
Common Law
Is making a culpable choice willing to do wrong?

1.
2.

MPC 2.02(7)
aware of high probability that facts exists
s beliefs are not inconsistent with facts existence
1

Jewell 220, G, conscious purpose to avoid truth

Mistake of Fact
Specific Intent
General Intent
Strict liability

Voluntary Intoxication
Defense
No defense
No defense

Mistake of Fact
Defense
Only reasonable mistakes are defenses
No defense

Common Law
m/r: choice to do obvious moral wrong
Prince 226, under 16 G, violated conduct rule
Prince dissent, G if chose to do legal wrong
White 227, abandon pregnant wife G

Conduct rule: addressing the public

Decision rule: addressing courts limits discretion of
law-appliers
Lesser-crime view: if mistake of fact, G of graver
crime
Moral norm (Bramwell)
Legal norm (Brett)

Mistake of Law
Defense
No defense
No defense

MPC
m/r: material elements of crime (Feola 235, assault
on fed officers G, fed officer is jurisdictional
element and doesnt require m/r)
Olsen 230, lewd conduct with child under 14 G,
mistake of age defense because of legislative intent
(another statute allows probation for those who made
reasonable mistake of age)
Hernandez 232, reasonable belief that V was over 18
= defense to statutory rape
213.6: Critical age < 10, reasonable mistake
defense; critical age > 10, reasonable (non-negligent)
mistake of age = defense
2.04(2): if mistake of fact, G of lesser crime

Mistake of Law
Ignorance About Criminal Law Conduct Rules Existence
Not defense
Defense

CL: mala in se crimes -> no defense

Failure of proof defense: Constitutional problem:

MPC 2.02(9): Generally not defense

crime doesnt give fair warning (Lambert 271,
registration of any convicted person not G, court

There is fair warning, e.g. due to dangerousness of act

read in m/r)
(International Minerals 266, corrosive liquid regulation

Failure of proof defense: Many blameless people

G, Bryan 267, deal in firearms G)
would be ensnared, criminalizing otherwise innocent

Cultural defense 267, cant adopt different and

conduct (Cheeks 263, tax not G; Liparota 266, food
discriminatory standard of criminality
stamp fraud not G; Ratzlaf 267, report cash
transaction not G)
Mistake About Meaning/Application of Criminal Law Conduct Rule to s Conduct
Not defense
Defense

Mistaken Reliance on Prosecutors/State actors advice CL: Entrapment by estoppel (Raley 271, P, in their
(Hopkins 270, marriage sign G)
official capacity, try to trick into violating the law)

Affirmative defense 2.04(3): Mistaken Reliance on

s or Private Counsels Mistaken Interpretation of

Official Interpretation of Criminal Law Conduct
Conduct Rules Application to (Marrero 255, gun
Rule (Albertini 268, multiple protesting not G,
dealers mistake about peace officer G, NY court
judicial interpretation)
applied MPC)

Failure of proof defense 2.04(1): s Mistaken

Interpretation of Collateral Civil Norm (Morrisette
237, knowing conversion of govt. property not G;
Smith 261, tenant pulled up boards he installed not
G)

Failure of proof defense 2.04(1): specific

intent/purpose (Weiss 256, intent, w/o authority, to
confine or imprison)
2

NJ: Actor diligently pursues all available means to

ascertain meaning and application of offense (259
fn.10)

Strict Liability

Mala prohibita crimes

Public welfare offenses = strict liability (low penalties, low stigma)

Today, many public welfare crimes have very significant penalty -> court will not apply strict liability when many
blameless people engaging in lawful acts w/o adequate knowledge might be criminalized

Legislative silence on m/r does not mean eliminate m/r element from crime (Morissette 237, knowingly convert
govt property not G; Staples 241, unregistered automatic firearm not G; X-Citement Video 243, not G, didnt
know the person was a minor)

If the public welfare crime is common, then strict liability applies (Freed 242, unregistered grenades G, should
have known about regulation since grenades are dangerous, also not many people possess grenades)
Vicarious Liability

No personal a/r of ; may or may not require m/r (Guminga 244, sell intoxicating liquor to minor not G, crime
w/o a/r is unconstitutional (narrow holding: w/o m/r and a/r is unconstitutional; Baker 247, speeding, cruise control
problem G: wrong! Court trying to distinguish from break failure and throttle malfunction, but even if open up
time frame, at time of earlier voluntary a/r driving, a/c over the speed limit was not satisfied)
Causation
CL
But-for:
But for s conduct, would the result
have occurred when it did?

YES
Was the manner in which
the result/harm occurred
intended or risked?
YES
G

NO
Not G

NO
Intervening human act: Did V intend the result?

YES
Impaired agency? If intervening actor is
reckless or negligent as to his own death, then
is G a lesser offense, such as involuntary
manslaughter (Kevorkian 533 n.70)

YES
G

NO
Not G

Stephenson 537,
rape, poison

Campbell 530, drunk,

provided gun, V
shot himself
Kevorkian 531,
suicide machine

NO
Proximate cause:
Was the intervening event a foreseeable
response to s conduct?
YES
G

NO
Not G

Kibbe 522, abandoned V, killed

by truck foreseeable response
Stamp 450, robbery, heart
attack take your V as you
find him
recklessly or negligently
provided means of suicide 533
fn. 70
McFaddin 548, drag racing
Atencio 550, Russian roulette
Feinberg 552, sterno

Acosta 518, highspeed chase,

helicopter crash
not foreseeable,
crash due to pilots
gross negligence

MPC
But-for:
But for s conduct, would the result
have occurred when it did?

YES
Strict liability?

YES
Was the result a probable
consequence?

YES
G

NO
Not G

NO
Not G

NO
Was the manner in which the result occurred
intended or risked?

YES
G

NO
Was the manner too remote or accidental to
have a just bearing on the actor? (This is a
question relating to s culpability.)

YES
Not G

NO
G

Arzon 521, 5/F and 2/F fire

Attempt Liability

Two conflicting goals:

o Give police an opportunity to intervene before crime is consummated
o Give individuals an opportunity to change their minds and desist from committing crime

Special preparatory crimes, e.g. stalking 574, Morales 300, loitering

Two reasons to charge attempt liability:

o Incomplete attempt (target result not completed), e.g. police intervention (Rizzo, McQuirter)
o Impossibility (target a/c not present) (Jaffe 585 G attempt to receive stolen property under MPC;
Dlugash 587, shot 5 minutes after Bush shot V; Oviedo 593, sold fake heroine not G)

(Legality principal: if there is no such law, cant convict)

Attempt Liability
Special
M/r
- Purpose/belief as to result (if
result element exists) 5.01(1)(b)
- Purpose as to a/r (5.01(1)(a)
impossibility)
- Purpose to finish target a/r
(5.01(1)(c) incomplete act)

Target Crime
Culpability
- M/r as to a/c
- M/r as to result
- Independent mental state
(specific intent)

Objective
- A/c (except for rare case where att
liability used because a/c element
was not present but believed it
was present impossibility)

A/r
MPC
- Substantial step that strongly
corroborates the actors criminal
purpose 5.02(2)
CL
- Dangerous proximity
- Equivocality test: conduct itself
shows actors culpability
CO statute
- Substantial step that is strongly
corroborative of the firmness of
actors purpose
Affirmative
- Complete and voluntary
renunciation 5.01(4)
CL
M/r

A/c
(preparation
vs. attempt)

Defenses
Punishment

MPC
Smallwood 556, rape + HIV not G assault with
intent to murder, no intent to kill
Weeks 559, HIV, spit on prison guard G
attempted murder, had intent to kill, even though
impossible
Thacker 560, fired a gun with ER, bullet missed
the woman not G attempted murder, no intent to
kill
Mandujano 579, did not have firm intent, changed
his mind easily
Dangerous proximity (obj): minimizes false
Weakened a/r test: substantial step that strongly
conviction
corroborates s criminal purpose (sub) willing
Equivocality test: criminalize only if conduct itself to convict for earlier preparatory behavior as long
shows actors culpability
as confident in identifying the culpable and
dangerous, increases possibility of convicting nonculpable individuals
Rizzo would be G
Rizzo 565, had intent to commit robbery,
McQuirter would be not G, walking does not
looking for V, police intervention not G
McQuirter 569, following V and admits intent to strongly corroborate criminal purpose [intent to
rape]
rape her G attempt to commit assault with intent
Harper would be G, substantial step= lying in
to rape
wait
Harper 578, bill trap not G attempted robbery,
Mandujano 579, undercover police gave $ to buy
bill trap is equivocal act, robbery lay 90 min away
drugs, returned it in an hour and returned $ -- G
attempting to distribute heroin
Mandujano 579, no defense, returned $ because he couldnt find drug dealer
Same punishment for crime and attempted crime (except murder) consistent with goal: same culpability
and dangerousness
5

Accomplice Liability
Mens Rea

Culpability of crime charged (Wilson 609, asks Pierce to commit burglary with him, Pierce breaks in, calls
police not G burglary, lacks culpability of crime charge, i.e. specific intent)

Purpose/knowing aid (Hicks 607, Indian murdered V not G murder, lacked special m/r purpose to facilitate prins
criminal conduct; Gladstone 611, gave undercover police name and address of drug dealer not G, only knowing
facilitation; Fountain 614, prison, provide knife G murder, knowing facilitation sufficient for serious crimes)

If accomplice has some stake in the outcome, e.g. $, can infer purposeful facilitation

Luparello 615, asks guys to find wifes friends, guys kill wifes friend not G under MPC, G by extending
accomplice liability, when is true accomplice for crime X, he is also vicariously liable for other crimes that are
the foreseeable and natural outcomes of crime X
Actus Reus

Low acc a/r requirement (Wilcox 628, just bought ticket to watch show and wrote article about it G; Tally 629,
sent telegram to stop warning telegram G, no causation requirement; no indispensable aid requirement)

Negligent as to result (McVay 623, owner told them to drive steamer, boiler exploded G negligent manslaughter)

SL as to a/c? (Xavier 621, gave ex-felon a firearm not G, need m/r know as to a/c convicted felon)
Accomplice Liability
Crime Charged
Special
Culpability
Objective
M/r
- M/r as to a/c (if SL,
- Prins a/r
- Purpose to aid principals criminal
depends on policy behind
- A/c
- Causation
conduct (defines what can be
the law, Xavier 621, not G) - Prins result
imputed)
- M/r as to result
CL
- Independent mental state
- Knowingly facilitates prins criminal
(specific intent)
conduct (especially for serious
crimes, Fountain 614)
- Derivative liability: Prins culpability
(requisite intent)
A/r
MPC
- Solicits, aids, agrees or attempts to
aid 2.06(3)(a)(i), (ii)
- Omission 2.06(3)(a)(iii)
CL
- Physical aid
- Psychological encouragement
(includes solicitation)
- Substantial assistance (for knowing
facilitation)
- Vicarious liability as to all other
crimes that are the foreseeable and
natural outcomes of the crime
charged (Luparello 615)
Affirmative
- Terminates complicity prior to
commission of offense 2.06(6)(c)
Derivative Liability
Criminal act with requisite intent impute to accomplice
Richards 642, Wife wanted V seriously injured, hired men to beat
V up not G assault with intent to cause grievous harm, principals
were not G because they did not have intent, cannot be G
Hayes 633, Hill is the trickster and prin, hands out bacon to not
G, prin did not have intent to steal, the act loses its criminal nature,
nothing to impute
Othello 643, Iago drives Othello into rage to kill, Othello G mans,

Criminal act impute to accomplice

Richards should be G greater crime, because she
did have the intent
As long as Hill did the conduct and Hayes had
the crime charged m/r, Hayes should be G.
Under MPC 5.01(3), Hayes G att burglary, prin
Iago G murder 1, premeditated
6

intent to kill with ade provocation/EEMD, Iago G manslaughter

Accomplice to an attempted crime
MPC
Attempt Liability
Accomplice Liability
Crime X
Special
Special
Culpability
M/r
M/r
- M/r as to a/c (if SL,
- Purpose/belief as to
- Purpose to aid
depends on policy
result (if result
principals criminal
behind the law,
element exists)
conduct
Xavier 621, not G)
- Purpose as to a/r
- M/r as to result
(impossibility)
A/r
- Independent mental
- Purpose as to
- Solicits, aids, agrees
state (specific intent)
finishing a/r
or attempts to aid
(incomplete act)
- Omission

Objective
- Prins
a/r
- A/c
- Prins
result

Causation

A/r
- Substantial step that
strongly corroborates
the actors criminal
purpose
CL
Accomplice Liability
Special
M/r
- Purpose to aid
principals criminal
conduct
- Knowingly facilitates
prins criminal
conduct (serious
crimes, Fountain)
- Derivative liability:
Prins culpability
A/r
- Physical aid
- Psychological
encouragement
(includes solicitation)
- Substantial assistance
(for knowing
facilitation)
- Vicarious liability as
to all other crimes that
are the foreseeable
and natural outcomes
of the crime charged
(Luparello 615)

Attempt Liability
Special
M/r
- Purpose/belief as to
result (if result
element exists)
- Purpose as to prins
a/r (impossibility)
- Purpose as to prin
finishing a/r
(incomplete act)

Crime X
Culpability
- M/r as to a/c (if SL,
depends on policy
behind the law, Xavier
621, not G)
- M/r as to result
- Independent mental
state (specific intent)

Objective
- Prins
a/r
- A/c
- Prins
result

Causation

A/r
- Dangerous proximity
- Equivocality test:
conduct itself shows
actors culpability

Defenses
Proof of:

M/r
Culpability

Failure of proof

Affirmative

A/r, a/c, result

Wrongdoing

Mistake of fact
Mistake of law

Voluntary act/Omission
Fair Attribution of
Fair Attribution of
Wrongdoing
Degree of
Wrongdoing
- Involuntary act
- Causation
(automatism,
unconsciousness)

Full excuse (insanity, - Justification

duress)
(necessity, self
- Partial excuse
)
(provocation, EEMD,
imperfect self )
Concurrence Principle: everything but result must occur at time of offense
Legality Principle: legislate crimes prospectively, forbids retroactive crime definition
Vagueness Doctrine: criminal law must define the proscribed conduct with sufficient clarity so that arbitrary and
discriminatory enforcement will not occur
Institutional Competency

Failure of Proof Defenses

See above
Affirmative Defenses

Excuses are always personal to the principal (Taylor 636, prin father and acc gf take child prin not G, has excuse
as father, not right for a divorced parent to act in unilateral way, should ask for court order, acc G)

Justifications are generally universal, but some are personal (keep in mind goal of identifying the culpable and
dangerous) (Vaden 634, illegal hunting, piloted aircraft and provided gun to undercover police even if prin has
justification as law enforcement official, this justification is personal, G)
Justification
Necessity: Choice of Lesser Evils
COMMON LAW (NY 817)
(a) G.E. must be imminent
(b) legislative preclusion
- necessity b/c more than morality and
advisability of the statute

MPC 3.02
(a) honest belief that:
- conduct is necessary to avoid G.E.
* to ameliorate G.E. != good enough
(b) legislative preclusion
- lawful conduct cannot be evil
- Constitutional sanctioned behavior (e.g.
abortion) = no evil at all (MPC 3.02(1))
(c) objective evaluation of evils
- G.E. > L.E.
- undecided: judge / jury

(c) objective evaluation of evils

- G.E. > L.E.
- according to ordinary standards of intelligence
and morality
(d) forfeiture (complete)
(d) forfeiture 3.02(2)
- IF s fault, NO defense.
- IF reck/negli create situation
(*) Lovercamp 811, prison-escape necessity
- no defense to reck/negli crimes
- specific threat of death near future
- complaint to auth. ineffective
(e) lives v rights: utilitarian number game wins over
- no time to go to court
innocent bystanders right to life
- no violence vs innocent persons during escape
- immediate return to prison
(a) jury nullification: Leno 813, court reluctant to instruct jury on this
(b) rationale: justifiable under unusual circumstances not contemplated by legislature; allows us to act as individual
legislatures, when a real legislature would formally do the same under those circumstances; esp. for net saving of human
lives (Dudley and Stevens); cant impose standards that people should and could not comply with
(c) legislature already spoke on issue, necessity N/A to direct/indirect civil disobedience (Schoon 820, protest against
Amer involvement in El Salvador G, call for public attention greater evil = existence of any law; unlikely to
8

abate the evil; legal alternatives not exhausted when harm can be mitigated by congressional action)
Self-Defense
COMMON LAW
MPC 3.04
SELF-DEFENSE REQUIREMENTS
(a) adequacy of threat
(a) adequacy of threat
- unlawful physical force
- unlawful physical force
- threat of death, rape, etc. NY753
(b) proportionality of response
= threat of serious bodily harm
- deadly force !justifiable
(b) proportionality of response
- UNLESS: death, rape, etc.
(c) necessity of defensive force
(c) necessity of defensive force
- imminent threat of bodily harm (Schroeder 782,
- immediately necessary (inevitable)
stabbed sleeping cell-mate G)
- on the present occasion
* duty to retreat (castle exception)
* duty to retreat (castle exception)
- must retreat if possible
- knows can avoid w/ complete safety
- factor in judging necessity
- only when using deadly force
- true man: b/c diffic jury instruct
- otherwise, no need to retreat
OBJECTIVE EVALUATION
(a) reasonably believes Goetz(NY86,CB751)
(a) reck/negli to belief of necessity
- particular circumstances
- no defense to reck/negli crime
- in s situations
- 3.09(2)
: past experience sensitized
- both belief AND act (response)
(b) therefore,
(b) imperfect self-defense
- unreasonable belief
- unreasonable belief
= manslaughter / negligent homicide
= voluntary manslaughter
* forfeiture 3.04(2)(b)(i)
* CF: Normans 776 imperfect self-defense 762: truly
- initial agress w/ purpose to cause serious
but unreasonably believed she had to kill to avoid an
bodily harm
imminent threat reduced culpability
- initial agress = forfeiture
BATTERED WOMANS SYNDROME
(a) cycle: tension-building physical abuse contrition
(b) credibility of : contrition = why not retreat (learned helplessness)
(c) reasonableness : sensitized to warning signs (expertise) imminence necessity
(d) problematic ironies: learned helplessness applied to women who are not passive but killed to solve the problem;
excluded from the few cases where women are so passive that they have to hire a hit-man to solve the problem
Goetz: his paranoia reas person (destroys negligent standard); but expertise to better know/eval danger of this robbery
Excuse
Duress
COMMON LAW
MPC 2.09
(a) imminent threat of physical injury
(a) no imminence requirement, threat of physical injury
- to yourself or close relative
- to anyone
(b) human coercer (no situational coercion)
(b) human coercer
- human coercer coerces the crime charged
(c) no reasonable lawful alternative
(c) no reasonable lawful alternative
(d) reasonable person would have been coerced (!deprived (d) reasonable person of ordinary firmness would not
of free will, Unger)
have been able to resist
(e) Exceptions:
(e) unavailable if actor was reck/neg in the situation
- responsible for bringing about the situation
2.09(2)
- not an excuse for homicide
(f) generally applies to all crimes
(a) Rationale: deprives a morally accountable actor of a fair opportunity to comply; law is ineffective and hypocritical if
it imposes a standard that judges are not prepared to affirm that people should and could comply with
(b) util: extend my life; retr: coerced actor does not deserve to be punished
(c) reasonable standard because criminal law is reluctant ask individual capacity in the criminalization question 850

Insanity
COMMON LAW
MPC 4
(a) McNaughten: cognitive: cannot know that the nature or
(a) mental disease or defect
wrongfulness of act
(b) lack of capacity
(b) Lyons: got rid of volitional prong
(c) cognitive: cannot appreciate the nature or
(c) Federal Statute (after Hinkley 894)
wrongfulness of act, OR
- SEVERE mental d/d
(d) volitional: cannot control conduct to conform to law
- cognitive
(e) automatic civil commitment (at least 6 months)
(d) civil commitment
- automatic (Jones 882, affirmed constitutionality)
- indefinite
- max period of confinement = max sentence of
crime charged (NJ 883)
- inform jury of automatic civil commitment 885
(e) has burden of proof by clear and convincing evidence
(f) jury reluctant to use it (Green 896)
Rationale
(a) specific deterrence not served (cant deter the insane) (although general deterrence weakened)
(b) rehabilitation: civil commitment
(c) retr: sick dont deserve to be punished
(d) legal definition of insanity
Other Issues
Diminished Capacity
COMMON LAW
US:
(a) pure m/r
(b) only for specific intent crimes

MPC 4.02
(a) pure m/r (very easy to prove, Pohlot)
(b) any crimes 4.02(1)

Scotland/Europe
(a) diminished capacity partial excuse
(a) purely subjective
Civil Commitment
Sexual Predator Laws
Competency to Stand Trial
Competency to Be Executed

10

Murder
Common Law
Murder 1 (specific intent)

Premeditation and deliberate as well as intent to kill

Caroll 396 PA, argument with wife, gun on window sill G

murder 1, equate intent to kill with premed + delib killing

Guthrie 400 WV, tease who has psychiatric problems

remand, distinction between premed + delib killing and the
mere intent to kill

Anderson 403 CA, gross killing of 10-yr-old girl not G

murder 1. Factors for premed + delib:
1.
Planning time
2.
Prior motive
3.
Manner of killing preconceived design?

Does premed + delib requirement distinguish dangerousness

and culpability? Compare Anderson (gross killing w/o
premed) and Forrest (mercy killing w/premed)
Murder 2 (general intent)

Malice = abandoned and malignant heart

Intent to kill or do severe bodily where death results, in

absence of adequate provocation

Felony-murder: death occurs during commission of

dangerous felony
Malignant heart

Malone 439, Russian roulette G murder 2

Manslaughter

intent to kill or severe bodily harm where death results with

adequate provocation
Provocation/Heat of Passion -> impaired volition of actor

Reasonable people dont kill -> provocation is only a partial

excuse -> lesser culpability

Rule-like categories of provocation: extreme assault or

battery upon , s illegal arrest, injury or serious abuse of
s close relative, sudden discovery of spouses adultery
(Giroaurd 405, wife taunt G murder 2, words are not
adequate provocation)

Standard for provocation (Maher 407, suspected wifes

adultery not G assault with intent to murder)
1.
provoked
2.
Reasonable person in actors situation would have been
provoked to act irrationally
3.
did not cool off before killing
4.
Reasonable person in actors situation would not have cooled
off
Involuntary Manslaughter

Gross negligence act/omission

Unintentional killing that is the result of an act, lawful in

itself, but done in an unlawful manner, and without due
caution and circumspection

Unintentional killing that occurs during the commission or

attempted commission of an unlawful act

Make people think more carefully ahead of time

They are morally culpable because they should have and

could have done better

Welansky 425, fire in night club G involuntary

manslaughter

MPC
Murder

Purposely

Knowingly

In advertent killing with ER

Does not distinguish murder 1 and 2 -> more discretion

for sentencing authority
Extreme Reckless Indifference to the Value of Human Life

Fleming 443, very dangerous driving while intoxicated

G murder 2

Subjective awareness of risk not required when lack of

such awareness is due to voluntary intoxication.
Drinking is a culpable choice to impair ones perception
capabilities
1.
Higher risk of death
2.
Social utility/justification of conduct that creates risk
normative judgment (obj): compare Phillips 459
(chiropractic, neutral/positive), Fleming 443 (speeding,
negative), Malone 439 (Russian roulette, very negative)
3.
Character assessment -> look at ALL actions and
attitudes, before and after killing (Roe 442, Russian
roulette, reacted with spontaneous despair and anguish
G murder: wrong!)
Manslaughter

Recklessness -> focus only on m/r concurring with a/r

Intentional killing with EEMD

Excessive Emotional and Mental Disturbance, for which
there is a reasonable excuse

mitigating factors -> less culpable

broader than heat of passion

Cassassa 415, obsessed with female neighbor G murder

2, s excuse was too peculiar
1.
did act under EEMD (sub)
2.
Reasonable explanation for s disturbance (obj):
reasonable person excludes actors characteristics that
defeat the purpose behind grading of homicide, i.e.
identify whos more dangerous and culpable. This is
ultimately a question of whether it arouses the sympathy
of ordinary citizens.

Negligent Homicide

Gross negligence

Does not fully individualize the negligence standard.

Objective standard -> establish general conduct for the
community in the interest of safety for all

Williams 431, child died of gangrene G manslaughter,

objective standard of ordinary caution; Pierce 434,
physician wrapped patient in kerosene G manslaughter,
objective standard; Everhart 438, smothered baby to
death not G involuntary manslaughter, low IQ: wrong!;
Edgmon 438, individual capacities would be considered
in assessing recklessness (grading), but not negligence
(criminalization)

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Reasonable person standard

used to distinguish:
Provocation

Criminal negligence

Consequence in using
this distinction:
Degrees of culpability:
Partial excuse ->
reduce culpability but
still criminally liable

Purpose behind this

distinction:
Accessing culpability

Criminalization:
Does not include
characteristics that
destroy the normative
standard that the law is
trying to articulate

Accessing dangerousness
Standard of ordinary care
that we except from lawabiding person
Normative standard: how
we want people to
behave, as long as its not
asking too much of them

Examples:

Short-fuse temper not

included
Volition not included
Mental retardation
included
Mental retardation not
included
Blindness included, e.g.
use of a walking stick
Williams, baby died of
gangrene G
Walker, Christian
science G

Felony-Murder

Stamp 450, V died of heart attack during robbery G murder 1, not limited to foreseeable deaths (Eggshell Skull
Doctrine: take your V as you find him)

Courts hostile to felony-murder (Aaron 457, abolished felony-murder rule: violated institutional competence (MI);
Dillon 458, followed legislative intent to codify felony-murder rule (CA))
CL
MPC

Ease
burden
of P

Old view of m/r: hold liable for more serious crime, strictly liable for all

Rebuttable
presumption
natural and probable consequences that occur due to felony (Brett)
of extreme recklessness in

Most felonies at early CL were hanging felonies

the commission of,
1.
Inherently dangerous felony
attempted commission of, or

CA rule: look at crime in the abstract (Phillips 459, chiropractic, G of grand

flight after robbery, rape,
theft by false pretenses not G felony-murder 2; Satchell 462, possession of
arson, burglary, kidnapping
concealable weapon by ex-felon not G felony-murder 2)
or felonious escape (holds

RI rule: look at manner in which felony was committed (Stewart 464, mother
onto m/r)
on crack binge, baby died of dehydration G)
2.
Merger

Applies to most assault-like felonies; otherwise, there would be a

bootstrapping argument that would make negligent homicide into murder
3.
Proximate cause

Liable for any death proximately resulting from felony, even death of co-felon
(exception: Shield cases)

Some courts may apply exception precluding liability when decedent is cofelon (Martin 475 NJ)

Taylor 477, robbery of liquor store, co-felon chattered, V shot co-felon G

murder 1, CA legislature adopted agency theory but court used vicarious
liability to convict, i.e. whether the conduct of a or his accomplices was
sufficiently provocative of lethal resistance to support a finding of implied
malice
4.
Agency (In furtherance of the felony)

Killing must be done by felon or co-felon acting in furtherance of the felony

Canola 471, Robbery, V shot co-felon not G murder; NJ legislature later

adopted proximate cause theory, with affirmative defense that felon had no
reason to anticipate the use of deadly force; courts have made exception
precluding death of co-felon

Heinlein 476, rape, co-felon suddenly killed V not G murder, unanticipated

actions not in furtherance of common purpose

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Rape
Actus Reus

Force, Nonconsent, and Resistance

Similarities between CL and MPC:

o Recognizes marital exemption
o Force means physical force only

Differences between CL and MPC:

o CL: aggressive seduction rape spectrum
o MPC: Felony 1 if theres bodily injury OR V was not a voluntary social companion who had
previously permitted sexual liberties
o MPC is gender-specific: = male, V = female
o MPC requires m/r reckless to each element and its impact on V
o MPC shift focus from Vs conduct to s conduct
o MPC has broader definition of force, including threats to 3rd persons
Physical Force/Threat
Other Force/Threat

Physical, moral, psychological, or intellectual force

CL: Alston 332 NC, and V lived together for 6

(Rhodes 336; Lovely 337, threat to fire man and stop
months in abusive relationship not G, there was
paying his rent and evict him G, threat to retaliate)
nonconsent, but no force

MPC: Threat would prevent resistance by a woman of

Physical force only (Thompson 333, threat: not

ordinary resolution (e.g. threat of loss of employment;
graduate not G; Mlinarich 334, threat: back to
but offers not included)
detention home not G)
Resistance required

CL: V must physically resist

CL: must use or threaten force to cause reasonable

fear of physical injury (Rusk 323 MD, V drove
home, light-choking G, reasonable fear, no need to
resist)

Resistance not required

Policy concerns: frozen fright response, increase

danger to V (Barnes 329 CA)

Absence of resistance due to reasonable fear

(exception: Iniguez 332, knew Vs subjective fear
and took advantage of it)

MPC: Vs resistance not required but may be relevant

Objective communication of nonconsent required

Warren 331 IL, biking not G

Affirmative consent required

Affirmative and freely-given permission, to a

reasonable person (negligence standard) (MTS 338
NJ, acquaintance rape, consensual foreplay G; WI
statute 343)

Deception
CL
Seducer rapist
Fraud in the factum: vitiates consent and constitutes rape

Deception causing a misunderstanding to the fact itself, e.g. CA: impersonating

a spouse
Fraud in the inducement: does not vitiate consent

Deception relates not to the thing done buy merely some collateral matter

Evans 346 NY, gullible girl not G, fraud never constitutes rape, and threats
are viewed from s perspective

Boro 348 CA, doctor, medical need not G, only impersonation of spouse
vitiates consent

MPC
knows that V is unaware
that shes having sex, or V
submits because she
mistakenly supposes is
her husband
Sex obtained by fraud in
factum does NOT
constitute rape, but is
gross sexual imposition
(3rd-degree felony)

Mens Rea
CL: general intent crime -> genuine and reasonable belief that V voluntarily consented = defense
Consent is a social construction, amenable to change with social norms -> reasonableness already built into the a/c
consent, so m/r is not as critical
Different cultural norms does not change reasonable person standard
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Strict Liability as to lack of consent

SL to rape (felony), especially problematic in date rape (accuse the innocent) (Sherry 351 MA, three doctors,
from Boston to Rockport G, negligence to a/c lack of consent, reasonable mistake of fact only, V need not
use physical force to resist, no means no; Fischer 354 PA, 1st time: consensual foreplay G, mistake of fact
defense; Rhodes 356 PA, 21-yr-old took 8-yr-old girl, whom he knew, girl complied with all of his
instructions G, forcible compulsion = not only physical, but also moral, psychological or intellectual force;
Ascolillo 358 MA, acquaintance G, honest and reasonable mistake as to consent defense)
Negligence as to lack of consent
Most American authority: honest and reasonable mistake as to consent = defense
Both strict liability and negligence standard -> symbolic message more important than individual justice
Reckless as to lack of consent
Lower requirement of a/r -> higher requirement of m/r (Reynolds 359 AK, V need not resist at all, require
higher m/r of recklessness: shift focus from V to )

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