Policy Considerations

Theories of Punishment
1. Retributive - Purpose is to make the criminal pay for the crime, rests on the theory
that the criminal owes a debt to society; however, it is based on emotions rather than a
dispassionate desire.
2. Rehabilitative Purpose is to make the criminal a functioning member of society;
arguably wastes resources on those undeserving of them, assumes criminality can be
cured.
3. Incapacitation Purpose is to isolate the criminal from society; tends to be costly
and serve no higher purpose, may further criminalize the person.
4. Deterrence To discourage future criminals from acting
Four parties can affect the criminals sentencing: (1) The Legislature can set minimum
sentences for crimes, (2) The Judge can choose from a range of options, (3) The Parties can
reach a plea agreement, (4) The Author of the Presentence Report can make
recommendations.

Sources of Criminal Law

1. Federal Code and Common law
2. State codes and Common Law
3. MPC
For the purposes of jurisdiction and enforcement, the federal criminal law and state criminal
law are separate and independent systems. Where to prosecute a criminal act depends on the
prosecutors discretion.

Policy Concerns: Jurisdiction

1. Federalization of Crime Originally, criminal law has been a state law issue. A
federal crime only occurred when the criminal crossed state lines or violated federal
interests. In the last forty years, Congress has created more federal crimes.
2. Prosecutorial Power Prosecutors have broad discretion with whether to prosecute.
Prosecutors can also stretch the statutes to prosecute conduct that might not have been
intended.
3. Judicial Power Courts can broadly interpret statutes and the constitution.
The Dominant Form of Jurisdiction is Prosecutorial Power Congress has left it to individual
prosecutors to define the bounds of the law. To aid this, Congress has instituted a broad
federal code that allows most conduct to be prosecuted. This keeps offenders from avoiding
punishment but might lead to overuse of bargaining.
The Role in Statutes in Criminal Law Statutes define the limits of lawful behavior and set
an elemental structure which complies with the key principles of the law. Statutes also
establish levels of punishment that reflect the four theories.

Statutory Interpretation
Not only are some statutory terms ambiguous hold-overs from common law but legislators
will deliberately use vague terminology to ensure that certain laws get passed. To interpret
statutes, courts can follow a textualist model, which while likely fail due to ambiguity. Next,
courts can follow a canon of interpretation

Intent based canons look at the legislative history and statutory history to determine
intent and use both common law and other sections of the statute to determine
definitions.
One of three statutory canons
o Rule of Lenity - when a criminal statute has more than one interpretation, and
can be read in a way to include or exclude the conduct of D, should construe
the statute narrowly.
o Rule of Strict Construction - Read statute narrowly to avoid criminalizing
additional conduct.
o Rule of Fair Import Use statutes to promote justice,

Elements of a Crime
1. Mens Rea
2. Actus Reus
a. Attendant Circumstances
3. Causation
4. Harm

Mens Rea
Mens Rea is characterized as the mental requirement in a criminal law. Modern law often
uses several categories of mens rea: intentionally, knowingly, recklessly, and with criminal
negligence. The theoretical underpinning of the mens rea requirement is the fact that criminal
law is viewed as implementing concepts of moral blameworthiness.
Intent In modern jurisdictions, specific intent is ordinarily used to refer to either to the mens
rea set out in the offense definition, or more narrowly, to a statutory mens rea requiring a
purpose to cause the social harm of the offense. The terms can be used in three specific ways.
1. General intent crimes are ones that have no specified mens rea but rather only require
proof of a morally blameworthy state of mind while committing the actus reus.
Specific intent crimes include a specific mens rea in the definition of the crime.
2. General intent crimes permit conviction on the basis of knowledge, recklessness or
negligence; specific intent crimes need intent/purpose.
3. General intent crimes have a mens rea that relates solely to the actus reus; specific
intent crimes need another mental state beyond the mens rea that applies to the actus
reus, such as:
o Intent to commit a future act, separate from the actus reus (possession with the
intent to sell)

o Specific purpose for committing actus reus (offensive contact with intent to
cause humiliation; or,
o Proof of awareness of an attendant circumstance.
United States v. Kimes
Defendant was charged with shooting a federal offer, a federal crime. Statute does not
specify whether it requires specific or general intent. If specific intent is required, the
defendant can only be guilty if he knows or should have known that the person
assaulted was a federal officer.
Statute has no language suggesting specific intent must be found. Categorizing the
statute as a general intent crime furthers the objective of protecting officers.

Common Law Terminology

Maliciously
The defendant was aware of the risks of his conduct but chose to engage regardless.
Regina v. Cunningham
Defendant tore gas meter of a wall. Gas seeped into the apartment next door, almost
asphyxiating victim.
Trial court found that Cunningham acted maliciously because he foresaw that his acts
could cause harm but chose to tear off the meter anyway.
Intentionally
The defendant had the purpose to cause a specific result or that the defendant was aware of
the harm that would result, even if the harm was not the particular aim.
Negligently
The defendant is unaware of the harm that could result because he failed to exercise the
standard of care a reasonable person would.
Willfully
The defendant performed the act with the intention of breaking the law or with the knowledge
that the action was illegal.

Model Penal Code 2.02: Mens Rea

A person is not guilty of an offense unless he acted purposefully, knowingly, recklessly or
negligently with respect to each element of the defense.
Due to the difficulty of proving a defendants state of mind, permissive inferences are
allowed.
Purposefully
A person acts purposefully with respect to a material element when:

The element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and

If the element involves the attendant circumstances, he is aware of the existence of

such circumstances or he believes or hopes they exist.

To test a mens rea of purpose, look at the motive for the crime. If a different motive exists,
purpose is not likely.
Knowingly
A person acts knowingly with respect to a material element of an offense when:

The element involves the nature of his conduct or the attendant circumstances, he is
aware that his conduct is of that nature or that such circumstances exist; and
If the element involves a result of his conduct, he is aware that it is practically
certain that his conduct will cause such a result.

A mens rea of knowledge fits into the retribution theory because only a person who chooses
to do wrong should be punished. It also fits the deterrence theory because the prospective of
punishment can only deter a knowing choice.
United States v. Lynch
Defendant convicted of knowingly removing an archeological resource from public
land. Lynch entered a conditional guilty plea and argued that he had not known he
was violating the law and that knowledge was an essential element.
Court held that government must prove that defendant knew or had reason to know
that he is removing an archeological resource.
United States v. Heredia
Defendant stopped by border patrol. Officer noticed strong odor, found marijuana.
Charged with possession of a controlled substance. Defendant testified that she
borrowed the car from aunt, noticed smell but did not investigate. Instruction for
deliberate ignorance was that defendant acted knowingly if found beyond a
reasonable doubt that defendant was aware of a high probability that drugs were in the
vehicle and deliberately avoided learning the truth.
Heredia asked for court to overrule Jewell and hold that statute extends liability only
to individuals who act with actual knowledge or for court to reverse conviction on the
grounds of defective instruction and insufficient factual basis.
Recklessly
A person acts recklessly with respect to a material element of an offense when he consciously
disregards a substantial and unjustifiable risk that the material element exists or will
result from his conduct. The risk must be of such a nature and degree that, considering the
nature and purpose of the actors conduct and the circumstances known to him, its
disregard involves a gross deviation from the standard of conduct that a law-abiding person
would observe in the actors situation.

Negligently
A person acts negligently with respect to a material element of an offense when he should be
aware of a substantial and unjustifiable risk that the material element exists or will result
from his conduct, the risk must be of such a nature and degree that the actors failure to
perceive it, considering the nature and purpose of his conduct and the circumstances known
to him, involves a gross deviation from the standard of care that a reasonable person would
observe in the situation.
People v. Hall
Defendant flew off a knoll while skiing, colliding with skier. Skier died as a result.
District court held that in order for conduct to be negligent, it must have been at least
more likely than not that death would result.
Under the circumstances, skiing while drunk and at high speeds created a substantial
risk. Four elements: 1) consciously disregarded 2) a substantial and 3) unjustifiable
risk that he would 4) cause the death of another.
o A person acts with a conscious disregard of the risk created by his conduct
when he is aware of the risk and chooses to act despite that risk. The actor
does not have to intend the result or be practically certain that the result will
occur; he only needs to be aware that the risk exists. A court or trier of fact
may infer a persons subjective awareness of a risk from the particular facts of
a case, including the persons knowledge or expertise. In addition, a court may
infer the actors subjective awareness from the fact that a reasonable person
would have known of the risk.
o Substantial and unjustifiable risk is one that is a gross deviation from the
reasonable standard of care.
o The risk can be a risk of death to another generally, not just to a specific
person. Only a slight risk of death is necessary to meet this element.

Actus Reus
Actus Reus is a voluntary act, often characterized as the physical part of the crime. The
element often refers to the offenders conduct. Actus Reus must be voluntary and can also
reach those who fail to act when they have a duty to do so.
Actus Reus also has a broader meaning referring to all the physical elements. Within the
broader meaning specific actus refers to the voluntary action while general actus includes
the action with all attendant circumstances, results and causation.

Policy Concerns Reasons for the Act Requirement

1. Only an act is reliable evidence of the existence of criminal intent. An omission is a
failure to act. By this policy, omissions are never crimes. Additionally, there can be
other proofs of intent besides an attempt.
2. Only an act is reliable evidence of the seriousness of a criminal intent. An act can
escalate outside the scope of intent and cause additional harm. Following this
standard, more serious punishments would be handed out.

3. Only an act inflicts harm and therefore justifies punishment. Not convincing.
Criminal law does not have a problem with punishment prior to harm.
4. We may not punish thoughts. Crimes like conspiracy are thoughts. Additionally,
criminal intent is a type of punished thought.
5. It is precedent from common law Fails because its self-perpetuating and provides
no real reason.

Common Law
Omission as an Actus Reus
The second type of actus reus is omission or failure to act. When actus reus punishes the
failure to do something, the failure must breach a legal duty to perform that act. As a general
rule, American law provides no general duty of care. This means that in most situations a
person is not legally obligated to come to anothers aid. However, in certain cases, a duty to
care or intervene may exist. The legal duty giving rise to criminal responsibility may come
from many sources.
1. Statutes as sources of legal duties A statue may impose such a duty. Often these
statutes actually impose criminal liability for failure to take certain measures.
2. Contract as the Source of duty a legally imposed duty of care may be created by
contract. The failure to adhere to the contract, causing death or injury, can constitute a
breach of legal duty triggering criminal liability.
3. Common Law duties Common law duties typically arise from relationships, such
that a person will have a legal duty to act based on a particular statute. Another
common law duty arises when one voluntarily assumes responsibility for care of a
person and thereby causes others not to do so, or sequesters a person so that others
cannot help him.
Even if there is a duty to rescue, from whatever purpose, a defendant is ordinarily excused
from the duty unless he can fulfill the duty without harm himself or unless he is the reason
the victim is at risk in the first place.
State v. Miranda
Issue is whether a person who is not the biological or legal parent of a child but still
establishes a familial relation with the family and voluntarily assumes responsibility
for the childs care has a legal duty to protect the child.
Miranda was convicted on the grounds that he had assumed a duty to protect the child.
Status Crimes
In certain situation the constitution places limits on a legislatures capacity to define actus
reus. Statuses cannot be criminal but their effects can.
State v. Robinson
California statute made it illegal to be addicted to narcotics. Robinson appealed his
conviction, based on evidence of needle marks on his skin.

Court held that a state law which imprisons a person, thus afflicted, as a criminal
inflicts a cruel and unusual punishment.

Powel v. Texas
Appellant arrested and charged with public intoxication. Appellant argues that
alcoholism is a disease and that he cannot control his behavior.
Court ruled that while Powell could not control his behavior when drunk, he could
choose when to drink.
Possession
Possession itself may be a crime, but the MPC requires that the defendant at least be aware
that he is in control of the item illegally possessed and have sufficient time to terminate
possession.

Model Penal Code Actus Reus 2.01

(1) A person is not guilty of an offense unless his liability is based on conduct that
includes a voluntary act or the omission to perform an act of which he is physically
capable.
(2) The following are not voluntary acts within the meaning of this Section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, either conscious or habitual.
(3) Liability for the commission of an offense may not be based on an omission
unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law.
(4) Possession is an act, within the meaning of this Section, if the possessor knowingly
procured or received the thing possessed or was aware of his control thereof for a
sufficient period to have been able to terminate his possession.

Causation
Often a statute requiring a harm also requires that the defendant cause the harm. Ordinarily,
this means that the defendant actually brought about the harm. Thus the element links the
actus reus to the harm.
Causation serves to limit the scope of liability; it links the defendants specific conduct to the
harm. Causation is based on the policy that it is unfair to hold someone criminally responsible
for harm that occurred in a way unrelated to the persons conduct.

Common Law Causation

But-for causation requires a link between the defendants act and the harm. Under the
doctrine of concurrent causation, multiple defendants can be held liable for a single harm.
The second facet is proximate causation and requires public policy analysis to answer
whether it is fair to hold the defendant criminally accountable for the result.

An intervening cause may break causation if it is independent of the conduct, while a

dependent cause will not. An independent cause would be one that is not reasonably
foreseeable.
But-For Causation
Actual causation establishes whether the defendants conduct was a link in the chain of events
that led to the harmful result. Traditionally, courts have determined actual cause using the
but-for test.
But-for causation does not determine whether the defendant sufficiently caused the harm to
be held criminally liable. Additionally, the defendants actions will almost always be a but-for
cause of an accident because of the limited meaning of the phrase. Even a defendant who
accelerates death has still met the but-for test, as long as there is sufficient evidence that the
defendants actions hastened the death.
Commonwealth v. McCloskey
McCloskey convicted of three counts of involuntary manslaughter after three
teenagers died at party at her house.
McCloskey argues that the teenagers action of drinking and driving were his own
decision leading to his death. Court upheld the convictions. McCloskey knew that
alcohol was being served at the party and was at home. McCloskeys furnishing of
alcohol to minors started the chain of causation that led to the deaths.
Proximate Causation
After but-for causation is found, the next step is to determine whether the defendants actions
were sufficiently direct to cause the death. At common law, courts consider whether the harm
was foreseeable and whether there were intervening or superseding causes.
In making the determination of whether a intervening cause should break the chain of
causation, the jury can consider several factors:
1. What was the nature of the intervening cause? Was it an act of nature or the deliberate
harmful act of another person?
2. Was the intervening cause foreseeable?
3. Who had control over the intervening cause?
4. How much did the intervening cause contribute to the harm?
5. Do any policy arguments exist for the intervening cause not breaking the chain of
causation?
When it comes to intervening causes, the eggshell victim rule is in effect and the defendant
takes the victim as he is. In relation, a victims actions to escape the defendant are not usually
enough to break the chain of causation.
Attendant Circumstances
Many crimes occur only in a specifically described situation. Attendant circumstances may
increase the seriousness of the conduct or turn lawful conduct into criminal conduct. The
decision to add a circumstance to a criminal statute is based on policy.

Model Penal Code 2.03 Causal Relationship Between

Conduct and Result
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have occurred; and
(b) the relationship between the conduct and result satisfies any additional causal
requirements imposed by the Code or by the law defining the offense.
(2) When purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not within the purpose or the contemplation of
the actor unless:
(a) the actual result differs from that designed or contemplated, as the case may be, only in
the respect that a different person or different property is injured or affected or that the injury
or harm designed or contemplated would have been more serious or more extensive than that
caused; or
(b) the actual result involves the same kind of injury or harm as that designed or
contemplated and is not too remote or accidental in its occurrence to have a [just] bearing on
the actor's liability or on the gravity of his offense.
(3) When recklessly or negligently causing a particular result is an element of an offense, the
element is not established if the actual result is not within the risk of which the actor is aware
or, in the case of negligence, of which he should be aware unless:
(a) the actual result differs from the probable result only in the respect that a different person
or different property is injured or affected or that the probable injury or harm would have
been more serious or more extensive than that caused; or
(b) the actual result involves the same kind of injury or harm as the probable result and is
not too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or
on the gravity of his offense.
(4) When causing a particular result is a material element of an offense for which absolute
liability is imposed by law, the element is not established unless the actual result is a probable
consequence of the actor's conduct.
Legal Cause
Instead of discussing proximate cause, MPC 2.03(2)(b) and (3)(c) look at whether the
defendant was the legal cause of the harm. These sections examine whether any other events
make it no longer possible to find that the defendant caused the prohibited result. The
defendant can only be found guilty if his actions were not too remote or accidental.

Harm
Many criminal laws require a specific harm to have occurred before the statute applies.
Sometimes the harm element is actually only the creation of a risk.

Burden of Proof
The standard of proof refers to the legal standard that must be satisfied to win the case. In
criminal cases, this standard is beyond a reasonable doubt. For defenses the burden of proof
can be set statutorily.
The burden of production refers to rules that require a party to offer some evidence on an
issue in order for that issue to be part of the case. With true defenses, the defendant has the
burden of producing evidence to be able to take the issue to the issue.
The burden of persuasion refers to which party has the responsibility of convincing the trier
of fact that the applicable standard of proof has been satisfied. The burden of proof for
defenses are set by the jurisdiction.

Common Law Burden

In an ordinary criminal case, the state must convince the jury that that each element is present
to a high degree of certainty inherent in the beyond a reasonable doubt standard. In meeting
its proof, the state must first meet its burden of production by offering some evidence that
each element is present. It must also present additional evidence if it is to meet its burden of
persuasion since the proof needed for the burden of production is far less convicting that
needed for proof beyond a reasonable doubt.
In general terms, jurisdictions are free to allocate the three concepts as they see fit for
defenses. Usually for defenses, the burden of production is on the defendant. The burden of
persuasion may be placed on either the accused or on the government.
In Re Winship
New York allowed a finding of juvenile delinquency to be made by the preponderance
of the evidence. Juvenile stole $112, sentenced to initial term of 18 months.
Guilty beyond a reasonable doubt is a matter of due process.

Model Penal Code 1.12 Proof Beyond a Reasonable Doubt

(1) No person may be convicted of an offense unless each element of such offense is proved
beyond a reasonable doubt. In the absence of such proof, the innocence of the defendant is
assumed.
(2) Subsection (1) of this Section does not:
(a) require the disproof of an affirmative defense unless and until there is evidence supporting
such defense; or
(b) apply to any defense which the Code or another statute plainly requires the defendant to
prove by a preponderance of evidence.
(3) A ground of defense is affirmative, within the meaning of Subsection (2)(a) of this
Section, when:
(a) it arises under a section of the Code which so provides; or

(b) it relates to an offense defined by a statute other than the Code and such statute so
provides; or
(c) it involves a matter of excuse or justification peculiarly within the knowledge of the
defendant on which he can fairly be required to adduce supporting evidence.
(4) When the application of the Code depends upon the finding of a fact which is not an
element of an offense, unless the Code otherwise provides:
(a) the burden of proving the fact is on the prosecution or defendant, depending on whose
interest or contention will be furthered if the finding should be made; and
(b) the fact must be proved to the satisfaction of the Court or jury, as the case may be.
(5) When the Code establishes a presumption with respect to any fact which is an element of
an offense, it has the following consequences:
(a) when there is evidence of the facts which give rise to the presumption, the issue of the
existence of the presumed fact must be submitted to the jury, unless the Court is satisfied that
the evidence as a whole clearly negatives the presumed fact; and
(b) when the issue of the existence of the presumed fact is submitted to the jury, the Court
shall charge that while the presumed fact must, on all the evidence, be proved beyond a
reasonable doubt, the law declares that the jury may regard the facts giving rise to the
presumption as sufficient evidence of the presumed fact.
(6) A presumption not established by the Code or inconsistent with it has the consequences
otherwise accorded it by law.

Defenses
Under both the MPC and Common Law, defenses must be raised by the defendant. Once the
defendant satisfies the burden of production, the prosecution must disprove the defense
beyond a reasonable doubt. Not all states follow the burden shifting approach of the MPC. In
some, the defendant has both the burden of production and persuasion to prove the defense.
Affirmative defenses in the MPC and some states depend on the facts that are independent of
the crime elements and do not disprove the elements. The difference the MPC places is that
the burden to prove an affirmative defense is on the defendant.
Many policy facts might enter into a decision to change an element into a defense. For
example, informative exclusively known by the defendant, coupled with inherent difficulty in
collecting information thorough others, might favor designing a particular issue as an
affirmative defense.
State v. Walker
Walker appeals his jury conviction of felony-murder and criminal discharge of a
firearm in an occupied building. State argued that no definition of reasonable doubt
should be given. Trial court gave definition that was not what was given in statute.
Walker questions jury instructions. Kansas Supreme Court disapproved of contrary
language.
Some courts require that trial judges define reasonable doubt. Others do not, because
it would be ill-advised to give redundant, confusing and logically flawed definitions
when Constitution does not require it.

Homicide
Common Law Homicide
Pennsylvania Pattern
First Degree Murder
o Malice aforethought plus willful, deliberate and premediated murder.
o Felony-murder
Second Degree Murder
o Intent to inflict serious bodily injury
o Extreme recklessness that shows a disregard for human life (depraved heart)
Voluntary Manslaughter
o Unlawful killing without malice aforethought, defendant had no intent to kill.
o Passion Killings

Model Penal Code Art. 210

One degree of murder.

Instead of felony-murder creates a rebuttable presumption that killings committed
during a felony show extreme recklessness for purposes of other provisions.

Assault
Common Law Assault
Placing a person

Model Penal Code 211.1 Assault

(1) Simple Assault. A person is guilty of assault if he:
(a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or
(b) negligently causes bodily injury to another with a deadly weapon; or
(c) attempts by physical menace to put another in fear of imminent serious bodily injury.
Simple assault is a misdemeanor unless committed in a fight or scuffle entered into by mutual
consent, in which case it is a petty misdemeanor.
(2) Aggravated Assault. A person is guilty of aggravated assault if he:
(a) attempts to cause serious bodily injury to another, or causes such injury purposely,
knowingly or recklessly under circumstances manifesting extreme indifference to the value of
human life; or
(b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly
weapon.
Aggravated assault under paragraph (a) is a felony of the second degree; aggravated assault
under paragraph (b) is a felony of the third degree

Defenses
In general, defenses to criminal liability are available when something about the defendant
appears to reduce moral blameworthiness. Defenses were previously common law doctrines
but have now been defined statutorily.
Generally, there are two broad categories of defenses: failure of proof and true defenses. True
defenses are often divided into defenses and affirmative defenses. Other jurisdictions use
different terminology.
The key question is whether a particular theory is a true defense or if it merely attacks the
prosecutions proof. A true defense adds another element to the case, one that the defendant
must raise and usually offer evidence to establish. A failure of proof defense does not add an
element; it merely asserts that the prosecution cannot prove its case.
A rebuttal is similar to a failure of proof defense and can be described in the same terms. A
rebuttal involves evidence presented by the defense that inferentially contradicts an element
of the crime.

Policy Concerns
Policy issues pervade defense claims. In general, and particularly self-defense; the tension is
between allowing citizens to protect themselves, on the one hand, and punishing those who
unnecessarily injure others. Self-defense is an important concept, but the law would
depreciate the value of human life if it allowed a person to claim defense against everyone.
In some jurisdictions, many defenses do not apply to offenses based on negligence or
recklessness, such as reckless homicide. The underlying theory is that the defendant is
permitted to use reasonable force, but is not justified in being reckless or negligent.

Failure of Proof Defenses

Self-Defense
Common Law Self-Defense
At common law, the claim of self-defense requires a person reasonably believe that the harm
was immediate. If the harm was not immediate, a defendant has failed to meet the standard
required and a judge will not allow the defense to go before a jury.
Common law also requires proportionality with the amount of harm threatened.
Common law provides that the initial aggressor does not have a right to self-defense unless
the victim used deadly force in the wake of non-deadly force or the aggressor communicated
that the threat was over.
The prevailing common law self-defense rule contains a requirement that the actor must
"both honestly (or actually) and reasonably have regarded the situation as calling for selfdefensethat is, as involving threatened harm of sufficient magnitude and immediacy to
justify the defensive force used."

The question of reasonableness of the belief is a matter of fact, not law.

Model Penal Code 3.04
Unlike common law, the MPC does not require immediacy of the violence but does require
the defense be immediately necessary in the present situation. The use of deadly force is only
allowed where the harm threatened was deadly force.
In certain circumstances the initial aggressor can regain the right to self-defense. The first
circumstance is where the initial aggressor used nondeadly force. In such circumstance, if the
victim responds with deadly force, the initial aggressor has the right to defend against the
victim's attack of deadly force.
Model Penal Code 3.09
In a MPC jurisdiction, if D unlawfully starts a nonlethal conflict, he does not lose his
privilege of self-defense if V escalates it into a lethal assault.
In a MPC jurisdiction, reasonableness is a subjective standard, if the defendant believes he
was in danger, force is justified.
Model Penal Code 3.11
"Deadly force" means force that the actor uses with the purpose of causing or that he knows
to create a substantial risk of causing death or serious bodily injury. Purposely firing a firearm
in the direction of another person or at a vehicle in which another person is believed to be
constitutes deadly force. A threat to cause death or serious bodily injury, by the production of
a weapon or otherwise, so long as the actor's purpose is limited to creating apprehension that
he will use deadly force if necessary, does not constitute deadly force.
Duty to Retreat
At common law, a duty to retreat from danger exists, only in the face of death or serious
bodily injury. However, the duty to retreat is based on a reasonableness standard. If it is
impossible to retreat or the victim has nowhere to retreat to, retreat is not required.

Battered Person Syndrome

At common law a self-defense claim has three elements,
1. A threat of immediate force
2. That is deadly
3. And retreat is impossible

Defense of Property
Defense of property rests on the intuition that people should be able to use some force to
protect their possessions.
The prevailing view is that the need for force and the amount of force must be reasonable
under the circumstances. The objective test is similar to that for self-dense and defense of
third parties. Deadly force cannot be used to defend property.

The MPC and several states provide two exceptions to the use of deadly force, in response to
the attempt to dispossess the defendant of his dwelling or in response to an attempt to commit
certain violent felonies.
People v. Ceballos
Ceballos set a trap gun to prevent future burglaries.
Allowing person, at their own risk, to employ deadly mechanical devices imperils the
lives of children, firemen and policemen acting within the scope of employment, and
others. Where the actor is present, there is always the possibility that he will realize
that deadly force is not necessary; deadly mechanical devices are without discretion.
Defendant is not protected from liability merely by the fact that the intruders conduct
would justify the defendant, if present, to use deadly force.

Public Duty
The public duty defense provides that a public employee performing his job is protected from
criminal liability while carrying out the duties inherent in the position.
Jurisdictions divide on the extent to which the defense is available if the authority under
which it is carried out is invalidly exercised. Some states take a subjective approach that
permits the servant to act on his actual understanding. Other states use an objective test,
asking whether the actor reasonably believes that the conduct is lawful.
Defense of necessity
Commonwealth v. Leno
Massachusetts prohibited the distribution of hypodermic needles without a
prescription. Leno operated a needle exchange program. The trial court rejected
Lenos request for an instruction of necessity.
The application of the defense of necessity is limited to when: (1) the defendant is
faced with a clear and imminent danger, not one which is debatable or speculative; (2)
the defendant can reasonable expect that his action will be effective as the direct cause
of abating the danger; (3) there is no legal alternative which will be effective in
abating the danger; (4) The legislature has not acted to preclude the defense by a clear
and deliberate choice regarding the values at issue.
The prevention of possible future harm does not excuse a current violation of the law
in anticipation of future benefit. The defendant did not show that the danger they
sought to avoid was clear and imminent.