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CRIMINAL LAW OUTLINE FALL 07 PROF. CHARLOW

I. JUSTIFICATION FOR PUNISHMENT
a. Retributive backward looking; seek to justify punishment on the basis of the offenders past behavior
(punishment because the offender deserves it); theory of just desserts
b. Utilitarian forward looking; seek to justify punishment on the basis of the good consequences it is
expected to produce in the future (attempts to prevent crime)
i. Deterrence
ii. Rehabilitation - not considered primary purposes of punishment today; fell out of favor about 20
years ago when it seemed that rehabilitation wasnt working
iii. Incapacitation - not considered one of primary purposes of punishment today; incapacitation
sentence usually for repeat offenders; where punishment is not related to the type of offenses,
but the fact that theyve committed the acts multiple times (ie. 3 strikes laws)
c. Regina v. Dudley & Stephens (cannibalism case) court held that there is never a justification for killing
an innocent; the only justification would be necessity (ex. Self-defense), but there is no absolute
necessity to save your own life
i. Court sentenced them to death to deter others from committing the same act
ii. The crown later reduced their sentence because under the extenuating circumstances, the
punishment didnt fit the crime (retribution)
II. ELEMENTS OF CRIMINAL CONDUCT
a. Crimes are defined by different categories of elements 3 different types:
i. Criminal conduct (actus reus)
ii. Attendant circumstances
iii. Result element some crimes require particular results in order to be considered criminal
iv. (any one or all of these elements can be accompanied by some level of intentionality mens rea)
b. ACTUS REUS
i. Martin v. State court found defendant not guilty of public intoxication because a voluntary act
was missing; he did not appear in public voluntarily (voluntary act is presupposed in the statute
common law rule)
ii. Why require criminal act be voluntary?
1. The law cant hope to deter involuntary acts
2. Personal security would otherwise be undermined; you would be held criminally
responsible for an act over which you had no control
iii. MODEL PENAL CODE 2.01(1) a person is not guilty of an offense unless his liability is based on
conduct which includes a voluntary act
1. Involuntary acts include: reflex or convulsion, movement during unconsciousness or
sleep, conduct during hypnosis, a movement that is not a product of the effort or
determination of the actor (for purposes of punishment, the law is concerned with the
conscious mind)
2. MPC & common law rule as long as one act for commission of the crime is voluntary,
there can be criminal liability (decision in Martin was an exception to this rule)
a. Rationale for this rule - if you did an act voluntarily, you had control over it and
the ultimate result (you have control over committing the crime) b/c the act that
was voluntary you couldve avoided
iv. People v. Newton defendant was found not guilty because doctor testified that the shooting
was a reflex action (and thus not voluntary); defendant was not conscious because of gunshot
wound to the abdomen
v. The definition of involuntary is inconsistent even within the criminal law itself (ex. Person driving
too fast, goes through a stop sign and unintentionally kills a pedestrian it is involuntary
manslaughter, but for purposes of the actus reus requirement his actions are not involuntary; it
was not a reflex or something he did while unconscious)
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c. OMISSIONS
i. The actus reus element of a crime may be established if person had a duty to act but failed to do
so
ii. Duty to act may be established by:
1. Contract
2. Voluntary assumption of care and seclusion of the helpless person from care by others
3. Status relationship (ex. Parent/child)
4. Statutory duty
5. Creation of Peril (if criminal act put someone in harms way)
a. General rule in US there is no duty to care for others (as opposed to most
European countries that impose liability for failure to render aid to persons in
peril)
b. Basis for this rule: libertarian notion in the US the law cant tell you what
choices to make; the role of government is to prevent affirmatively committed
harm, rather than to impose worthy moral values
iii. MODEL PENAL CODE 2.01(3) Liability for the commission of an offense may not be based on
an omission unaccompanied by an offense unless:
1. The omission is expressly made sufficient by the law defining the offense; or
2. A duty to perform the omitted act is otherwise imposed by law
iv. Jones v. United States baby was not cared for and died of malnutrition; it was not clear if babys
mother was living in the home with defendant and if she had paid defendant to care for the baby
(wouldve established contractual duty); appellate court reversed trial courts decision because
they failed to instruct jury on the necessity to find that defendant had a legal duty to act
v. Pope v. State court found defendant under no legal obligation to help the baby (even though
she may have had a moral obligation), and thus she could not be guilty of child abuse; she had no
right to usurp the mothers duty, even if she doubted the mothers mental state b/c then shed
be taking on responsibility based on a subjective belief not granted by law
d. MENS REA culpable mental states
i. Broad definition: moral blameworthiness
ii. Narrow definition: the kind of awareness or intention that must accompany the prohibited act,
under the terms of the statute defining the offense
iii. Regina v. Cunningham defendant stole the gas meter from the basement, causing asphyxiation
of the woman next door; court overruled trial courts conviction b/c trial judge incorrectly
instructed the jury on the meaning of malicious as being wickedness (the instruction contained
elements that sound like recklessness, negligence and strict liability)
1. Just proving the mental state of the theft was not enough, b/c unless you prove mens rea
of both acts youre not proving blameworthiness
iv. Regina v. Faulkner court held that defendant could not be found guilty of setting fire to the ship
because he had no actual intention to do so; just because he had the intent to commit another
felony (stealing rum), such mens rea cannot also be applied to the unintentional act of setting
the fire
v. Minimum mens rea requirements:
1. default rule in common law cases: awareness that action posed a substantial risk of
prohibited harm and did it anyway
2. Model Penal Code 2.02(3) says that if necessary mens rea is not explicitly stated in the
law, a minimum of recklessness must be proven (but doesnt say if recklessness test
should be applied to all the material elements)
3. MPC 2.02(1) a person is not guilty of an offense unless he acted purposely, knowingly,
recklessly or negligently with respect to each material element of the offense
4. MPC 2.02(4) - When the law defining an offense prescribes the kind of culpability that is
sufficient for the commission of an offense, without distinguishing among the material
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elements thereof, such provision shall apply to all the material elements of the offense,
unless a contrary purpose plainly appears
a. This means that a state of mind spelled out at the beginning of a statute "travels"
to all the material elements of that statute unless the legislature expresses a
clear indication that it should not
vi. Specific Intent vs. General Intent (these terms were eliminated in the MPC)
1. General Intent defendant did the criminal act on purpose, not by accident; there was
an intentional action
2. Specific Intent the criminal act was done with a specific mens rea; act done with a
specified further purpose in mind
a. Ex. Burglary is commonly described as a specific intent crime because it
requires that the defendant have the further objective of committing a felony
once inside; without that further purpose, there would only be proof of a
general intent crime, such as trespassing, so long as he knew of the nature of
the acts he performed (another example: assault with intent to kill vs. battery)
3. Specific Intent can also mean with knowledge of relevant attendant circumstances
a. Ex. Bigamy depending on the jurisdiction, may have to prove knowledge of the
attendant circumstance (still being married)
vii. State v. Hazelwood court states that criminal negligence requires a greater risk. The risk must
be of such a nature that failure to perceive it constitutes a gross deviation from the standard of
care that a reasonable person would observe in the situation. The criminal negligence standard
requires the jury to find negligence so gross as to merit not just damages but also punishment
1. But the defendant does not have to be actually be aware of the risk; criminal negligence
does not require a more culpable mental state than ordinary negligence
viii. MODEL PENAL CODE 2.02 - General Categories of Culpable Mental States; one of these mens
rea is required for each material element of an offense; if the law defining an offense states a
mens rea but does not specify the material elements it applies to, the mens rea applies to all the
material elements of the offense (unless a contrary purpose clearly appears)
1. Purposely (aim or desire) a person acts purposely with respect to a material element of
an offense when:
a. If the element involves the nature of his conduct or a result thereof, it is his
conscious object to engage in conduct of that nature or to cause such a result;
and
b. If the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes that they exist
2. Knowingly (awareness of fact) a person acts knowingly with respect to a material
element of an offense when:
a. If the element involves the nature of his conduct or the attendant circumstances,
he is aware that his conduct is of that nature or that such circumstances exist;
and
b. 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
3. Recklessly (awareness of substantial and unjustifiable risk) 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
4. Negligently (reasonable person wouldve been aware of the risk) 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
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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 actors situation
ix. Model Penal Code framework for analysis in order to determine the mens rea required for
conviction in any situation:
1. Determine the material elements of an offense
2. Determine which type of mens rea is required with respect to each element
x. United States v. Jewell defendant was convicted of knowingly transporting marijuana from
Mexico to US in his car; court upheld the conviction based on policy reasoning that deliberate
ignorance and positive knowledge are equally culpable; if youre not aware of a fact because you
made a conscious effort not to know, that is the same as knowing
1. MPC 2.02(7): When knowledge of the existence of a particular fact is an element of an
offense, such knowledge is established if a person is aware of a high probability of its
existence, unless he actually believes that it does not exist
a. This allows a jury to find knowledge when something less than knowledge is
proven general rule: knowledge can be satisfied by willful ignorance
2. Public policy reasoning: if positive knowledge was required, then anyone could smuggle
drugs by willfully avoiding knowledge
a. The law did not set the mens rea at recklessness because of the high penalty for
drug smuggling; the law wants someone who suspects at a high level that
something is illegal and still consciously makes a decision to not discover the
truth for a criminally nefarious reason
xi. Mistake of Fact
1. Regina v. Prince mistake of fact could not be raised as a defense because court
imposed strict liability with regard to the attendant circumstance of the girls age;
defendant was committing an illegal act in unlawfully taking the girl (actus reus taking;
mens rea knowledge) so the fact that she was underage was the risk he took moral-
wrong approach
a. lesser-crime principle: when a defendant knowingly commits a crime, he runs
the risk of his crime resulting in the greater crime (contrary to the decisions in
Cunningham and Faulkner, where defendants were held blameworthy only at
the level of the first crime)
b. Tender Age Presumption the law wants to encourage extreme care in how we
deal with the young
2. MPC 2.04(1)(a) ignorance or mistake as to a matter of fact or law is defense if the
ignorance or mistake negates the mens rea required to establish a material element of
the offense (not the general rule in US most courts still follow the reasoning of Prince)
3. People v. Olsen defendant was convicted of lewd or lascivious conduct with a child
under the age of 14; a reasonable mistake of age defense could not be used in this case
a. Lesser wrong was that the girl was under 18
b. Greater wrong was that she was under 14
c. The majority opinion is that since the under 14 statute has a much greater
penalty (because it is a much greater harm) it justifies strict liability
d. Dissent says theyve got it backwards: harsher punishment should not have strict
liability because the penalty is so great; should not have punishment without a
culpable mental state (a higher mens rea)
xii. Strict Liability
1. United States v. Dotterweich president of pharmaceutical company was convicted of
shipping mislabeled products
a. Court imposed strict liability defendant neither knew nor shouldve known that
the shipment was mislabeled
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b. Public welfare/regulatory offenses purpose is to protect the public; court has
to choose between placing burden on the public (who has no opportunity to
know of the danger) and the otherwise innocent defendant (who has some
opportunity to know what was going on)
2. Morissette v. United States defendant was a junk dealer who entered Air Force
property and collected used bomb casings to resell thinking they had been abandoned;
he was convicted of knowingly converting government property
a. Supreme Court reversed conviction holding that the defendant must be proven
to have had knowledge of the facts that made the conversion wrongful that the
property had not been abandoned by its owned
b. Court said this case is not like public welfare offenses that have been newly
created this offense was part of the common law and intent was an established
part of the law (which is why legislature did not expressly write it into the statute
it was inherently understood)
3. Staples v. United States defendant was convicted of unlawful possession of an
unregistered firearm; defendant claimed that he did not know of the guns
characteristics that would make it a firearm (automatically firing more than one shot
with single pull of the trigger)
a. Supreme Court reversed conviction, holding that court cannot dispense of mens
rea in a felony statute the punishment (up to 10yrs in prison) must match the
blameworthiness of the defendant
b. Court says that they should not apply the theory of public welfare (where no
mens rea is required) in this case, because it would criminalize generally
accepted conduct; a lot of people lawfully owns guns, if the court made this a
strict liability offense then a lot of innocent people would get caught up in such a
statute
c. This case calls into question of validity of cases like Dotterweich (its not clear
that theres a difference)
xiii. Mistake of Law
1. People v. Marrero defendant was arrested for unlicensed possession of loaded
handgun; he thought he was exempt from the law because he was a peace officer
(correctional officers of any state correctional facility or of any penal correctional
institution he was a federal corrections officer)
a. Appellate court said he misread the statute and thus he was not exempt; his
mistake was not a defense to the crime
b. Common law rule (Mistake of Law Doctrine): mistake of law does not relieve
defendant of criminal liability
c. Difference between mistake of fact and mistake of law: if this had been a
mistake of fact, the court wouldve had to consider if a mens rea was necessary
for conviction (ex. Knowledge of the possession of a gun); if defendant had made
a mistake of fact of possessing the gun, he would not have been guilty
d. Court does not allow mistake of law to be a defense because:
i. we want to discourage ignorance of the law; if you hold people liable for
not knowing what the law requires, you are encouraging them to find
out what the law is and comply with it
ii. to prevent abuse by those who would use this as an excuse when they
actually committed an evil act
e. Problem with not allowing the defense:
i. injustice to the individual because there is no blameworthiness (goes
against retribution), but court want to use this case as deterrence (but
how can you deter someone who is unaware that what they are doing is
unlawful??); you cant deter reasonable acts
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f. Exceptions to the common law rule
i. MPC 2.04(3) a belief that conduct does not legally constitute an
offense is a defense when:
1. The statute defining the offense is not known to the actor
and has not been published or otherwise made available
2. He acts in reasonable reliance upon an official statement of
the law, afterward determined to be erroneous, contained in
(i) statute, (ii) judicial decision, (iii) administrative order, or
(iv) official interpretation by public officer or body charged
with responsibility for the interpretation, administration or
enforcement of the law
3. Ex. United States v. Albertini while defendant was awaiting
word on whether Supreme Court would hear case, he
engaged in another protest and was arrested; conviction for
second protest was overturned b/c he reasonably relied on
circuit courts decision that his right to protest was protected
by 1st Amendment
4. Attorneys advice does not qualify as an official statement of
the law (Hopkins v. State)
ii. MPC 2.04(1) mistake of fact or law is a defense if the mistake negates
the mens rea required to establish a material element of the offense
1. Ex. Regina v. Smith defendant had been convicted of
destroying property in an apartment he was renting;
conviction was reversed because he lacked the mens rea
(knowledge) that the property he was destroying belonged
to another (element of the crime) he mistakenly believed
the property legally belonged to him
2. Rule: If you make a mistake of law, but the mistake is about a different law than the one
youre charged with, and your mistake negates a mens rea necessary for the commission
of the law you are charged with violating, you have a valid defense (ex. State v. Woods
woman incorrectly thought divorce decree was valid and was charged under Blanket Act
being found in bed with another womans husband)
3. Cheek v. United States - If your mistake negates the mens rea, you have a defense; the
difference in this case is that you can make a mistake about the very law youre violating
and that can also negate the mens rea
4. Lambert v. California defendant was unaware of the law requiring her to register in Los
Angeles as an ex-con; Supreme Court reversed her conviction due to the passive nature
of the violation; her crime was an omission to act nothing prompted her to act or know
that she had a duty to register (so to convict would be in violation of Due Process she
had no notice)
III. RAPE
a. Elements of the crime
i. Sexual intercourse
ii. By force or threat
1. Force makes it clear that the defendant knew there was no consent its difficult to
figure out if victim consented, but if perpetrator had to use force to get it done, then he
knew there was no consent
iii. Without consent
iv. (Some states require reasonable resistance, others use resistance as evidence of force and/or
non-consent)

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b. Actus Reus
i. State v. Rusk Pat drove Rusk home; Rusk took keys from the ignition, told her to come up to his
apartment; she alleged he lightly choked her
1. Elements of rape under the Maryland statute:
a. Vaginal intercourse
b. By force or threat of force
c. Against the will and without the consent of the victim
d. (evidence must show either that the victim resisted or that she was prevented
from resisting) resistance proves both non-consent and force
i. if you demonstrate no through your resistance, then you clearly prove
non-consent
ii. she wouldnt be resisting if there was no force
2. Evidence of force is uncertain court held that just where persuasion ends and force
begins in such cases is essentially a factual issue; the reasonableness of Pats fear was
plainly a question of fact for the jury to determine
3. Some courts require reasonable resistance (People v. Warren biker in the woods case
defendant was acquitted because victim didnt resist and court said resistance was
possible)
a. Non-resistance can be excused when victims fear was reasonable
ii. MPC 213.1(1) a male who has sexual intercourse with a female not his wife is guilty of rape if:
1. He compels her to submit by force or by threat of imminent death, serious bodily injury,
extreme pain or kidnapping, to be inflicted on anyone; or
2. He has substantially impaired her power to appraise or control her conduct by
administering or employing without her knowledge drugs, intoxicants or other means for
the purpose of preventing resistance; or
3. The female is unconscious; or
4. The female is less than 10 years old
iii. State in the Interest of M.T.S. - court held that the force requirement can be satisfied by the force
inherent in the act of penetration
iv. Consent it is unclear what should be considered consent
1. Could consent be silence? Failure to resist?
2. If consent is affirmatively expressed, does that necessarily mean it was freely given?
How do you distinguish what may be legitimate persuasion as opposed to coercion?
c. Mens Rea minimum mens rea required: negligence
i. Commonwealth v. Sherry case of three male doctors and female nurse leaving party to go to
another house
1. Defendants wanted jury instruction that knowledge of victims non-consent was required
2. Trial judges instruction said not to look at the situation from the defendants perception;
what matters is what was done, what words were used, etc; the mens rea required could
be either:
a. Negligence - you dont look at what defendant subjectively thought, thats
irrelevant, but you look at all the circumstances and consider what a reasonable
person would have perceived about consent under the circumstances
b. Strict liability - its about whether there was actually consent and it doesnt
matter what the defendant thought
3. Rule: an unreasonable mistake of fact regarding non-consent is not a defense
a. Most jurisdictions consider the reasonableness of the mistake of fact regarding
consent
ii. Some courts impose strict liability no means no what the defendant thought is not taken
into account; by definition, any person in a no means no situation has to perceive no, so
mistake of fact is not a defense (reasonableness is not a consideration)
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iii. Mens rea Force: if real force is required (aside from the force of intercourse), the physical
violence gives fair warning to the defendant that there is non-consent; so in these situations
maybe strict liability is enough
1. But in a jurisdiction where force is defined very loosely (where psychological force can be
implied), then perhaps more than strict liability should be required
a. Ex. If two college students had previously had sex, but one party did not want to
participate again but felt psychological pressure
iv. Comparing rape to other crimes:
1. Malicious injury must be reckless (aware of risk, but disregard it)
2. Robbery must have knowledge youre taking someone elses property
3. But in rape, defendant is guilty if only negligent; usually mens rea corresponds to the
severity of the crime why is this not the case with rape?
a. Social policy to encourage reporting of rape; perhaps victim is more likely to
come forward if the crime is easier to prove
b. argument that we should look to a womans centered world for determining
what is negligent from the womans perspective, whats reasonable to the
woman not from the defendants perspective
v. Gradation of rape is not based on mens rea (ex. MPC differentiates first and second degree rape
based on whether serious bodily injury is done, or whether victim and defendant were previously
sexual partners)
IV. HOMICIDE
a. PREMEDITATION / DELIBERATION courts split on the meaning of premeditation (some define it as
purpose, other as careful deliberation)
i. Commonwealth v. Carroll defendant and wife had turbulent marriage; wife suffered from
schizoid personality; she asked that he leave a gun on the windowsill by their bed; one night after
argument, after wife had fallen asleep, defendant reached for gun and fired 2 shots into the back
of her head
1. Defendant argued that he could not be convicted of first degree murder because there
was no premeditation not enough time between the argument and the killing for there
to have been deliberation
2. Deliberate could mean:
a. With careful thought and reflection (requires time)
b. Willful, meant to do it, purposely (does not require time)
3. Court held defendant guilty of first degree murder said that you can deliberate in a
moment; court equates intent with premeditation
a. this approach eliminates the distinction between first and second degree murder
ii. State v. Guthrie dishwasher at restaurant became enrages with co-worker and stabbed him in
neck and arm
1. Court reached different conclusion than in Carroll held that there must be some
evidence that the defendant considered and weighed his decision to kill in order for the
prosecution to establish premeditation and deliberation under the first-degree murder
statute
2. Court rejects idea of instantaneous premeditation
3. Reasoning: first-degree murder distinction is reserved for premeditated murders because
the threat of the death penalty can only deter deliberate murder and not spontaneous
acts (and death penalty is reserved for only those most culpable and least capable of
reformation)
iii. People v. Anderson - defendant killed his girlfriends daughter with 60+ stab wounds, with some
having been delivered post-mortem
1. It was determined not to be a first degree murder; insufficient evidence of premeditation
and deliberation (in sense of careful thought & reflection)
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2. Court looked at the manner of killing shows it was not premeditated; if it had been
premeditated it wouldve been more careful and not an explosion of violence
a. The multiplicity of stab wounds was a mitigating factor in this case; evidence of
explosion of violence, and so conviction was for second degree murder lesser
punishment (does this make sense?)
iv. MPC 210.2 Model Penal code does not divide murder by degrees based on premeditation;
criminal homicide constitutes murder when it is committed:
1. purposely or knowingly; or
2. with extreme/gross recklessness
v. Malice Aforethought = murder (manslaughter is killing without malice aforethought)
1. Intent to kill
2. Implied malice when there is no provocation (gross recklessness)
3. Abandoned and malignant heart
b. PROVOCATION - In common law, malice aforethought excludes intentional killings where reason is
clouded or obscured by passion that is produced by adequate provocation; provocation negates the
malice aforethought; mitigates murder to manslaughter; both common law and MPC require an
objective element (reasonableness) not every defendant who flies off the handle and kills someone is a
candidate for the provocation defense
i. Maher v. People defendant shot man he thought was sleeping with his wife
1. Rule: what qualifies as reasonable or adequate provocation is anything which would
naturally produce such a state of mind in ordinary men
2. Provocation is a mitigating factor because:
a. The law recognizes the frailty of human behavior
b. rationale is that we are assuming that a reasonable person would react in the
same way upon finding infidelity of a spouse
c. we can imagine ourselves in defendants position and imagine that wed also be
provoked
3. Justification for provocation defense:
a. Retribution people are less blameworthy when provoked
ii. Girouard v. State defendant had turbulent marriage; after argument where wife verbally
attacked defendant, he stabbed her 19 times with a kitchen knife; psychologist testified to
defendants mental problems, but court held that the provocation was not enough to cause a
reasonable man to react as the defendant did
1. Words were not enough to act as provocation this is in line with the conventional
common law rule that only a few circumstances can serve as legally adequate
provocation (some courts reject these categorizations):
a. Extreme assault or battery
b. Illegal arrest
c. Injury to a close relative
d. Sudden discovery of spouse in act of adultery
iii. Partial Justification rationale an individual is to some extent morally justified in making a
punitive return against someone who intentionally causes him serious offense; defendant is less
blameworthy
iv. Cooling Time common law view that too long a lapse between the provocation and the act of
killing renders the provocation inadequate as a matter of law (issue of provocation would not go
to the jury)
v. MPC 210.3(1)(b) criminal homicide constitutes manslaughter when a homicide which would
otherwise be murder is committed under the influence of extreme mental or emotional
disturbance for which there is a reasonable explanation or excuse. The reasonableness of such
explanation or excuse shall be determined from the viewpoint of a person in the actors situation
under the circumstances as he believes them to be
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1. This formulation is unpopular because its extremely broad it allows mitigation in
circumstances where defendant does not seem less blameworthy
vi. People v. Casassa defendant went to neighbors apartment (who had said she didnt want to
date him) with gift of wine, but was rejected; defendant stabbed her several times in the throat,
dragged her body to the bathroom and submerged it in bathtub full of water to make sure she
was dead
1. Defendant argued that he was under extreme emotional disturbance distinct from a
heat of passion in that the resulting action must not be spontaneous, so cooling off
period does not matter
2. Court set out two elements of extreme emotional disturbance:
a. Subjective defendant must have acted under EED (was he disturbed?)
b. Objective there must be a reasonable explanation for the EED (was he
reasonably disturbed?)
3. Question of reasonableness goes to the jury, even if there was no external provocation
vii. ISSUE should the standard for judging reasonableness be individualized (to take into account
certain characteristics of the defendant) or should an objective invariant standard that doesnt
change from person to person to assess provocation?
1. The standard is usually not individualized, but the gravity of the provocation may be
individualized (ex. Man who kills prostitute after she teases him about his impotence
his personal characteristic (impotence) increased the gravity of the provocation)
2. Culturally-based defenses are usually not accepted because if we do individualize for
each case, then the law becomes not normative of what we expect (there are social
consequences to not normalizing the standard to a general degree of self-control we
expect from everyone)
3. MPC - the reasonableness under 210.3(1)(b) is to be determined from the viewpoint of a
person in that actors situation (personal handicaps are taken into account; idiosyncratic
moral values are not)
viii. SUMMARY INTENTIONAL KILLINGS
1. Murder requires malice aforethought; intent to kill (express malice) defendant
intended to kill the victim
2. Manslaughter intent w/provocation (provocation mitigates murder to manslaughter) or
extreme emotional disturbance (as adopted in MPC)
c. UNINTENDED KILLINGS
i. Defendant may not have intended to kill, but could be guilty if created a risk that death would
result
ii. Possible ways to respond to risk creation:
1. No Liability
2. Civil Liability
3. Manslaughter
4. Murder
Tort law determines the line between first and second responses; Criminal law determines
the line between the 2nd and 3rd, and 3rd and 4th
iii. Civil vs. Criminal Liability
1. Gross negligence is required for homicide (involuntary manslaughter); criminal
punishment is over-punishment for ordinary negligence
2. We save criminal punishment for serious anti-social behavior; otherwise youre going to
impact the willingness of ordinary law-abiding citizens to engage in potentially dangerous
activity (ex. driving a car, being a doctor)
3. Commonwealth v. Welansky (fire in nightclub case)
a. Court said that to constitute wanton or reckless conduct, grave dangers to others
must have been apparent and the actor must have chosen to run the risk rather
than alter his conduct
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b. But in this case the court did not require that the defendant actually realized the
risk, just that the danger would have been apparent to an ordinary person; the
requirement was that he should have realized the danger (objective standard)
negligence
c. Under MPC 210.4, wouldve been negligent homicide, not manslaughter
d. It doesnt matter to the court how likely a fire was b/c in the event of a fire, the
degree of risk in terms of the nature of the harm was quite substantial; court is
focusing on the substantial harm rather than the degree of likelihood (the gravity
of the harm was such that the likelihood is less important)
e. The element that seems to distinguish gross negligence from ordinary negligence
in this case is the gravity of the substantial harm
4. ELEMENTS of criminal negligence:
a. Awareness of risk of death (reasonable persons awareness) negligence
b. Difference in the degree of risk gross negligence
i. High degree of likelihood
ii. That substantial harm will result
iii. Harm must be unjustifiable
5. People v. Hall - While skiing, defendant flew off a knoll and collided with Cobb, causing
his fatal brain injuries; he was charged with reckless manslaughter
a. District court held that he was not reckless because the risk of death had to be
more likely than not (found that skiing too fast is not likely to cause death)
b. State supreme court held that risk does not have to be more likely than not in
order to be substantial and unjustifiable
c. Jury trial later found Hall guilty of negligent homicide (found he was not aware of
the risk, but a reasonable person would have been)
i. he was probably so confident of his skiing skills that he did not have the
subjective awareness of the risk of death; he was so sure of his skills
that he wouldnt think he would kill someone
6. State v. Williams - Defendants were convicted of manslaughter for negligently failing to
seek medical attention for their 17-month old son (thought baby had a toothache)
a. at the time the case was decided, ordinary negligence was the standard of
liability for manslaughter (the rule has since been changed and law now requires
gross negligence)
b. Why punish defendants that are inadvertently negligent? Can you deter
negligence? Is it morally blameworthy to no appreciate a risk?
iv. Murder vs. Manslaughter
1. Commonwealth v. Malone defendant shot and killed victim in game of Russian Roulette
a. Second degree murder conviction was affirmed; court held that the malice
element required for murder conviction can be satisfied by the intentional
doing of an uncalled-for act in callous disregard of its likely harmful effects on
others gross recklessness
2. Murder conviction with mens rea of gross recklessness (aka Implied Malice):
a. Must be aware
b. Gravity of the risk is greater
c. Justification is lower
d. defendant must reasonably anticipate that death is likely
3. MPC 210.2(1)(b) criminal homicide constitutes murder when it is committed recklessly
under circumstances manifesting extreme indifference to the value of human life
4. MPC 210.3(1)(a) criminal homicide constitutes manslaughter when it is committed
recklessly
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5. United States v. Fleming defendant was driving between 70 and 100 mph, swerving
into oncoming traffic, with blood alcohol of .315; defendant lost control and hit another
vehicle, killing the driver
a. Court held there was sufficient evidence for jury to find malice aforethought;
proof of malice may be established by evidence of conduct which is reckless and
wanton and a gross deviation from a reasonable standard of care; in order to
prove murder, the prosecution only had to prove that defendant intended to
operate his car in the manner that he did without regard for the life and safety of
others
b. Awareness of risk when conduct is such a gross deviation from reasonable
standard of care, jury may infer that defendant was aware
i. Exception for lack of awareness subjective awareness is not required if
lack of awareness is attributable solely to voluntary drunkenness
ii. MPC 2.08(2) when recklessness establishes an element of the offense,
if the actor due to self-induced intoxication is unaware of a risk of which
he would have been aware had he been sober, such unawareness is
immaterial
v. FELONY MURDER if killing occurs during the commission of a felony, this becomes another
form of malice aforethought
1. Basic Common Law Rule - you can have murder liability for killing someone in the course
of a felony
a. Regina v. Serne (exemplifies less strict version of the rule) man set fire to his
house to collect insurance money, and his son was killed in the fire; court held
that any act known to be dangerous to life and likely to cause death, done for the
purpose of committing a felony which causes death, should be murder
b. People v. Stamp does not follow the reasoning of Serne; Honeyman died from a
heart attack probably induced by the fear of the burglary; felony-murder may be
invoked regarding offenses that involve an act that has a low likelihood of death
(burglary)
i. Without felony-murder rule, Stamp would not have been convicted of
murder because he didnt have malice aforethought and was not grossly
negligent (and probably not even enough for manslaughter conviction)
ii. This case shows how felony-murder extends murder conviction way
beyond what otherwise would be murder liability
2. Mens rea for felony murder - strict liability with regard to the culpable mental state for
the killing; prosecution does not have to prove intent when it comes to the killing
(provocation is irrelevant in felony-murder; provocation only mitigates an intentional
killing, not a felony-murder killing)
a. BUT, felony-murder rule does not dispense with the actus reus and causation
requirements still have to prove felony caused the death (the result must have
been the natural and probable consequence of defendants action, or it must
have been foreseeable)
i. Ex. King v. Commonwealth - drug distribution was not the proximate
cause of the death, so defendant could not be convicted of felony
murder (the proximate cause of the death was the fog)
3. Statutes the notion that any felony can qualify for felony-murder came from the
common law (even if a statute doesnt list each particular felony) felonies numerated in
statutes (ex. NY code) are for first-degree murder
4. Justification for this rule - deterring certain conduct during the commission of a felony
(violent conduct thats dangerous to human life) not to deter the felonies themselves
a. BUT, even if theres some deterrent value, rule seems unfair because imposes
liability without fault
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5. Model Penal Code - doesnt adopt the felony-murder rule, but due to the widespread
continuing use of the rule, MPC replaced the rule with a rebuttable presumption, that if
youre committing one of the felonies enumerated in statutes, then we can assume that
you had the gross recklessness required to establish the mens rea of murder
a. Burden shift - places burden on defendant to prove that he did not act with gross
recklessness
6. Misdemeanor-Manslaughter Rule it is involuntary manslaughter if you kill in the
commission of an unlawful act that is not a felony; because this rule requires not even
criminal negligence (but yet youre guilty of a homicide) its even less popular than
felony-murder (adopted in fewer jurisdictions)
7. LIMITATIONS on felony-murder rule
a. Felony has to be Inherently Dangerous
i. People v. Phillips defendant (chiropractor) convinced parents of 8yr
old w/eye cancer that he could cure the cancer with treatment; child
died and jury convicted defendant of murder; court held that trial court
erred in giving the felony-murder jury instruction b/c grand theft does
not satisfy the test for inherently dangerous (viewed in the abstract,
crime of fraud is not inherently dangerous)
1. Why look at the crime in the abstract and not as it was
committed? -- Bootstrapping argument if you say as
committed, the felony was dangerous to life, then almost
anytime someone dies in the course of a felony the
defendant would be convicted of murder
ii. People v. Stewart mother was convicted of murder after going on a
crack binge and allowing her baby to die from dehydration; court held
wrongfully permitted a child to be a habitual sufferer may be inherently
dangerous if we look at the manner and circumstances in which it was
committed (most other jurisdictions reject this requirement)
iii. Hines v. State defendant shot his friend while turkey hunting;
committed felony of illegal possession of a gun by a convicted felon;
court held that felony-murder rule applies because a felony is inherently
dangerous when it is dangerous per se or by its circumstances creates a
foreseeable risk of death
iv. From these cases we see three possible tests for inherently dangerous:
1. Prove inherently dangerous in the abstract
2. As-committed, the felony was inherently dangerous b/c it
created a foreseeable risk of death
3. As-committed, the felony was inherently dangerous b/c it
created a high probability of death
b. Merger Doctrine
i. You cannot have felony-murder based on a felony that is an integral
part of the homicide, and is in fact included in the homicide (ex. assault)
ii. People v. Burton defendant killed someone in the course of
committing an armed robbery, so the felonies are (1) armed robbery
and (2) assault with a deadly weapon; the assault merges with the
murder, but the robbery does not b/c it had a purpose apart from the
killing
1. Burton Test if the felony has an independent, felonious
purpose, then it does not merge and thus becomes the
predicate for felony-murder
2. Ireland Test if the felony is included in fact within the
elements of the homicide, then it does merge; any felony
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that is really part and parcel of the homicide gets merged
into the homicide
a. Ex. Wilson burglary was an integral part of the
homicide b/c the point of the burglary was to
commit a deadly assault (did not enter the dwelling
to commit larceny, etc.)
iii. Problem w/Burton Rule (seen in People v. Hansen): a felon who acts
with a purpose other than specifically to inflict injury on someone is
subject to greater liability for an act resulting in death than someone
who actually intends to kill the victim
1. Hansen Test: the predicate felony cannot be one that would
elevate all felonious assaults to murder or otherwise subvert
the legislative intent; ad hoc determination -- in every case
well look at the felony involved and ask: if we make this a
separate felony so that there can be a felony-murder charge
will it throw out the grading scheme for murder
iv. Its a fairly universal rule that assault with a deadly weapon will merge;
but when it comes to other felonies its a lot less clear (merger muddle);
the more a felony is like assault, the more likely it is going to merge
c. Killings Not In Furtherance of the Felony
i. Basic requirement of felony-murder rule: act of killing must have been
done in furtherance of the felony
ii. Three situations where this requirement becomes problematic:
1. Killings After the Felony has Ended felony continues to be
perpetrated during the defendants effort to escape
2. Killings By Felons But Not in Furtherance if co-felon goes
off on a frolic of his own the other felons are not guilty of
felony murder
3. Killings by Non-Felons ex. State v. Canola during robbery,
storeowner and one of the felons were shot and killed; issue
was whether co-felon could be held liable for felony murder
of the killing of owner
a. Defendant is complicit because he and his co-felons
had a joint plan, and therefore each is responsible
for the foreseeable crimes of the other that were
committed in furtherance of that joint plan
b. Defendant could be liable under 2 theories:
i. Agency Theory: an act that is foreseeable,
committed in furtherance of the joint plan,
and must be an accomplice/co-conspirator
ii. Proximate Cause: was death a direct result
of the felony; central issue is whether the
killing, no matter by whose hand, is within
the foreseeable risk of the felony
c. Agency theory limits felony murder liability, while
proximate cause theory does not; court in this case
adopted the agency rule
vi. SUMMARY UNINTENDED KILLINGS
1. Involuntary Manslaughter - requires gross negligence (in most states); sometimes
ordinary negligence suffices, but usually it doesnt b/c the common law idea was that
negligence had to be over and above what suffices for civil liability; there has to be a
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substantial risk of death, but you dont have to prove that the person was aware of the
risk
2. Murder
a. Gross recklessness (Implied Malice) - person is aware that there is a substantial
and unjustifiable risk to human life; extreme indifference to human life
b. Felony-Murder
V. CAUSATION
a. Foreseeability
i. People v. Acosta defendant was being chased by police; two helicopters that were tracking him
collided and crashed to the ground (killing 3 people onboard); court held that defendant was a
proximate cause
1. Rule but-for causation is not enough; the harm must also be objectively foreseeable
2. Majority held that the crash was foreseeable (traveling at high speed, etc); dissent argues
that this was a highly extraordinary event
ii. Causation:
1. Factual Cause but-for causation; the harm would not have occurred in the absence of
the defendants act
2. Proximate Cause the act must bear a sufficiently close relationship to the resulting
harm (foreseeability is the test for proximate cause)
3. When causation is a required element of a crime, both types of causation must be
proven beyond a reasonable doubt
iii. People v. Arzon - defendant intentionally set fire on the fifth floor of an abandoned building;
firemen responded; while trying to withdraw from the building, another fire broke out on second
floor; firemen died of injuries sustained while trying to evacuate
1. Court held that defendants conduct was a sufficient cause of the death it need not be
the sole and exclusive cause; an individual is criminally liable if his conduct is a
sufficiently direct cause of the death, and the ultimate harm is something which should
have been foreseen by the defendant (but-for the defendant setting the fire, the victim
would not have been placed in the dangerous situation, and the defendant could have
foreseen the his act would cause firemen to respond and thus be exposed to the life-
threatening danger of the fire)
2. Sufficiently Direct Cause of Death: the ultimate harm is something which shouldve been
foreseen as reasonably related to the defendants acts (greater standard than for tort
liability)
3. Defendants act:
a. Put victim in vulnerable position
b. and continued to operate to make escape difficult
iv. People v. Warner-Lambert Co. court required more than evidence of foreseeability; the
defendant had to foresee the specific trigger that caused the explosion (since trigger was
unknown, court found insufficient evidence of causation)
v. Omissions may be legal cause of a result in situations where there is a duty to act
vi. Model Penal Code 2.03 subsections 2-4 set forth the causation requirements for different
levels of culpability
vii. Doctrine of Transferred Intent if A unlawfully kills B while intending to kill C, A will still be guilty
of murdering B despite how unforeseeable the killing may have been (reasoning: A had
blameworthy mental state) MPC 2.03(2)(a)
b. Subsequent Human Actions voluntary action of a responsible human actor breaks the chain of
causation, even if the action was foreseeable
i. People v. Campbell defendant encouraged Basnaw to kill himself and gave him a loaded gun;
Basnaw killed himself; murder conviction was reversed on appeal
1. The death was foreseeable but defendant is not guilty because he did not actually do the
killing; hope alone is not the required level of intention for a charge of murder
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ii. People v. Kevorkian defendant assisted two women in ending their lives; but-for and
foreseeability are not enough in this case because this involves suicide; when you have
uncoerced suicide its viewed that the person caused his own death -- a superseding human
factor that intervened, broke the chain , and caused the death; Court reasons that there is a
difference between assisting in the events leading up to the commission of the final overt act
causing death (such as furnishing the means) and being an actor in the final overt act
iii. Model Penal Code 210.5 permits convicting a person of criminal homicide for causing another
to take his life but only if he purposely causes such suicide by force, duress or deception
iv. Assumption of Free Will law of causation treats physical events that follow from a persons
actions as caused by him, but does not treat voluntary human action that follows from an initial
actors conduct as caused by that actor, even when the subsequent human action is entirely
foreseeable
v. Stephenson v. State defendant abducted victim; bit and wounded her w/intent to rape; victim
took poison in attempt to commit suicide; when she became sick defendant gave her milk and
offered to take her to hospital; he took her back to her parents house; she later died of one of
her bite wounds that became infected
1. But-for causation is satisfied (but-for defendant biting her, she would not have died)
2. But it was not foreseeable that she would die from those acts
3. HOLDING: Victims actions were not a superseding cause because defendants actions
made her irresponsible and so she was no longer exercising free will, and defendant is
therefore guilty; involuntary act will not break the causal chain even when the act is
unforeseeable
4. To convict for homicide, must prove that:
a. Deceased was irresponsible when she took the poison
b. Defendants unlawful acts caused her irresponsibility
5. MPC 2.03(3) would apply in this case; victims death was within the risk that he was
aware of or shouldve been aware of; had he not kidnapped and raped her she might not
have tried to kill herself, and his omission to get aid was risking her death (so the act is
within the risk and causation element would be satisfied)
a. MPC considers foreseeability because it asks whether the harm was within the
scope of the risk that the actor was aware of or shouldve been aware of
vi. Commonwealth v. Root drag racing case; court held that defendants reckless conduct was not
a sufficiently direct cause of the other racers death (stricter standard than proximate cause in
civil liability); deceased chose to race and swerve into oncoming traffic (dissent argued that but-
for defendants actions, the accident wouldnt have occurred b/c there wouldnt have been
occasion for the other driver to race, and that the accident was foreseeable)
vii. State v. McFadden drag racing case where one racer and third party were killed; court applies
different test than in Root they apply the civil standard for proximate cause (if defendant acted
recklessly and death was foreseeable, then can be guilty of involuntary manslaughter)
viii. Commonwealth v. Atencio Russian roulette case; 3 men were playing, one died; manslaughter
convictions were affirmed b/c court held that defendants had a duty not to cooperate in the
game, and so their participation makes them guilty; court distinguishes this case from the drag
racing cases b/c those involved the drivers level of skill while this case was about pure luck; but
the deceased exercised free will in choosing to participate in the game (ruling does not seem to
make sense)
ix. Causation for felony murder MPC 2.03(4): (strict liability causation) you need to find that the
actual result is a probable result of the actors conduct
VI. ATTEMPT
a. Why do we punish attempt?
i. Deterrence - Is punishment for attempt going to add any extra deterrence beyond the
punishment for the crime itself? In most states, punishment for attempt is half the punishment
for the completed crime so you dont really get any extra deterrence b/c if youve already
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risked the punishment for the full crime, why would you stop b/c of the threat of half the
punishment?? Not a strong argument for punishing attempt
ii. Retribution if you attempt to do something you have a morally blameworthy mental state
b. Why do we punish attempt less severely than the completed crime?
i. Because there was no actual harm done
ii. It provides an incentive to stop (if attempt was punished the same as regular crime, then
someone having second thoughts would just go through with it at that point you have nothing
to lose)
iii. If you voluntarily abandon your attempt, then youll get a penalty reduction
c. MENS REA for Attempt Intent/Purpose for Result element
i. Smallwood v. State HIV positive man raped 3 women without wearing a condom even though
he knew he was HIV positive and had been warned by a social worker that he needed to practice
safe sex; court held that he was not guilty of assault with intent to kill because attempted murder
conviction requires a specific intent to kill (MPC purpose)
1. Paradox of attempt: higher mens rea threshold than for the completed crime; if the rape
victims had died, defendant couldve been convicted of murder he acted with gross
recklessness AND committed a felony
ii. Common Law Rule every attempt requires specific intent to commit the target crime even if the
completed crime does not require specific intent
iii. Why require specific intent? Possible explanations:
1. To attempt something is to try to accomplish it, and one cannot be said to try if one does
not intent to succeed
2. One who intends to commit a criminal harm does a greater moral wrong than one who
does so recklessly or negligently
3. The importance of the intent is not to show that the act was wicked by that it was likely
to be followed by hurtful consequences
iv. No such thing as attempted felony-murder because for an attempt conviction you have to intend
the result and not just the underlying conduct (ex. if you went to rob a bank w/toy gun, and if
someone died of a heart attack in the bank, you wouldve been convicted of felony-murder but
if no one dies, you cant be convicted of attempted felony murder there was no intent)
1. Also, no such thing as attempted involuntary manslaughter (contradiction in terms)
v. MPC 5.01(1)(b) - regarding the result element, allows knowledge as well as purpose
vi. Mens Rea for Attendant Circumstances (in Attempt) the mens rea required with regard to
attendant circumstance is the same for attempt as for the crime itself (ex. Statutory rape strict
liability for the crime as well as for the attempt) parity principle
d. ACTUS REUS for Attempt need some act that makes clear actors intent
i. Mere Preparation acts which are too remote to constitute a criminal attempt
1. Locus Penitentiae an opportunity to repent, change ones mind
ii. Unequivocal Intent Standard - some act toward committing the crime and proof beyond a
reasonable doubt that the defendant intended the crime (ex. if person buying a gun told the
storeowner that he was going to kill so-and-so)
iii. McQuirter v. State victim thought defendant was following her; defendant said he was waiting
for his friend; police said defendant confessed to intending to rape the woman; defendant was
convicted of attempted assault with intent to rape
1. Under unequivocal intent standard there was enough for the conviction there was
some act (following), and evidence beyond a reasonable doubt that he was going to
rape her (the evidence we have is the police account of defendants confession) jury
found the police account credible (and that would be enough evidence of an unequivocal
intent)
2. We find the conviction troubling b/c it was 1953 in Alabama, defendant was black and
victim was white
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3. Problem w/Unequivocal Intent approach: we need something beyond clear intent, we
would want some kind of act thats unambiguous, a dangerous act that corroborates the
intent
iv. Unequivocal Act Standard (not a popular test) - acts which are innocent or ambiguous are not
enough; words are not enough either; the defendants acts must speak for themselves; criminal
intent must show on the face of the act
1. Problem w/Unequivocal Act approach conviction for attempt would be almost
impossible because almost any act can be ambiguous (the test requires too much)
v. Last Step Test its considered an attempt when the defendant has taken the last step short of
committing the crime (this step is universally rejected)
vi. People v. Rizzo defendant and 3 other men planned to rob another man; they drove around
looking for him but never found him; the car was being watched by the police, so when
defendant jumped out to run into a building, the police arrested all 4; court held defendant not
guilty of attempted robbery because circumstances did not satisfy the dangerous proximity test
1. Dangerous Proximity Test the act has to be dangerously proximate to success has to
come very near the accomplishment of the crime (this is the rule in most jurisdictions)
2. common law rule you have to be physically proximate to the victim
3. Problems w/dangerous proximity rule
a. Crime prevention the test puts the act of attempt so close to the final act that
good police work (like in Rizzo) is hampered police dont want to arrest early
because person would then be let off the hook (no incentive for police to stop
criminals before they go too far)
b. Locus Penitentiae the test puts the act of attempt too early, thus not allowing
defendant time to be absolved if he changes his mind
vii. Abandonment defense available if the defendant truly abandons his attempt you have to
voluntarily and completely renunciate your criminal purpose (MPC 5.01(4)); some courts
recognize this defense, others do not
viii. MPC 5.01(1)(c) to be an attempt act must be a substantial step toward the commission of the
crime (a substantial step is strongly corroborative of the actors criminal purpose)
ix. United States v. Jackson case of attempted bank robbery where defendants staked out the
bank one day and then decided to come back on a different day; court in this case adopted the
model penal code approach and rejected proximity test, focusing on what the defendant did, not
on what he had left to do
1. MPC/Substantial Step Standard
a. First have to prove mens rea (intent)
b. Then have to prove actus reus (substantial step)
c. Finally have to prove that the substantial step corroborates the criminal intent
x. United States v. Harper defendants set bill trap to get technician to come out to service the
ATM machine so they could then commit a robbery; court held that this was not an attempt
under the substantial step test because the defendants never actually made a move to rob the
technician or the bank the bill trap was equivocal because of the time lapse between the
setting of the trap and the arrival of the potential victim
1. Case highlights the problem w/the MPC standard because it requires that you get so
close to the commission of the crime that good police work is hampered
e. Solicitation - allows for the conviction of a defendant for an attempt-like crime in a situation where the
person he solicits does not get close enough for there to actually be an attempt; you can hold the
solicitor responsible for the crime of solicitation (MPC 5.02)
i. Punishment often much lower for solicitation than for attempt
ii. State v. Davis defendant approached Leverton about finding an ex-con to kill his girlfriends
husband; Leverton revealed this fact to Dill who decided to pose as an ex-con; defendant paid
Dill money and told him to make it look like a robbery
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1. Court held that defendant could not be guilty of attempt b/c the person who was
supposed to carry out the act never got close enough to the commission of the crime
iii. RULE: where the defendant attempts to commit an offense through an innocent or irresponsible
human agent, he can be convicted of the crime or attempted crime even if the agent never got
close to carrying out the offense; if agent was responsible or aware, defendant can only be
convicted as an accomplice for whatever the agent was responsible for (he cant be convicted in
his own right)
iv. United States v. Church defendant hired a hit man to kill his wife (hit man was an undercover
OSI agent); defendant gave him money, street maps, approved the weapon, etc.
1. Court held defendant guilty of attempted murder (said defendant took a substantial
step; that it wasnt just preparation) said the solicited person was like an armed missile
2. Different conclusion than in Davis; ruling in this case is in line w/MPC 5.01(3) a person
who engages in conduct designed to aid another to commit a crime (which would
establish accomplice liability if the crime were committed) is guilty of an attempt even if
the crime is not committed or attempted by the other person
f. Impossibility - individual attempts to commit a crime but does not complete the crime because given the
circumstances it was impossible to effect the crime
i. Factual Impossibility NOT a defense to criminal attempt
1. When the defendants intended end constitutes a crime, but he fails to consummate the
crime because of a factual circumstance either unknown to him or beyond his control
2. Quintessential example: pickpocketing an empty pocket the intended end is a crime (to
take someone elses money), but he fails to consummate b/c of a factual circumstance
unknown to him (the fact that the pocket was empty)
3. Reasons to hold such defendants guilty of attempt:
a. Had the mens rea for the crime (blameworthiness)
b. What they wanted to do was a crime
c. Did the actus reus of the crime
ii. Legal Impossibility usually is a defense to attempt; two kinds of legal impossibility
1. Pure Legal Impossibility - the criminal law does not prohibit the defendants conduct nor
the result he sought to achieve
a. Ex. bootlegger was selling during prohibition, and then prohibition was repealed
but he thought he was still breaking the law cannot be guilty simply because he
thought he was breaking the law; criminal law does not punish bad thoughts
2. Hybrid Legal Impossibility - defendants goal is illegal, but the commission of the offense
is impossible due to a factual mistake regarding the legal status of some factor relevant
to the criminality of the defendants conduct
a. Involves both factual and legal aspect; every hybrid legal is also factual, but every
factual is not necessarily hybrid legal
b. Ex. defendant tries to bribe a juror who it turns out is not a juror; defendants
goal is illegal but he made a factual mistake; the mistake he made about whether
the person was a juror or not relates to the legal status thats directly relevant to
what makes the defendants conduct criminal (the status as juror legal status
is significant)
c. Ex. People v. Jaffe defendant was found not guilty of attempting to buy stolen
cloth (a person who buys or receives any stolen property knowing that it is stolen
is guilty of criminally receiving such property)
i. Defendants goal was illegal to buy stolen goods
ii. But he made a factual mistake about the legal status of the goods they
were not in fact stolen
iii. Under MPC, only pure legal impossibility is a defense to criminal attempt (under common law,
both hybrid legal and pure legal are defenses)
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iv. People v. Dlugash after victim had been shot by another party, a few minutes later defendant
went over to the body and fired approximately 5 shots in the victims head
1. This was a case of hybrid legal impossibility defendants goal was illegal, but he made a
factual mistake (that the victim was alive) which affected the legal status of a condition
that makes his act criminal (legal impossibility to murder someone whos already dead)
2. Defendant was guilty of attempted murder because this jurisdiction had adopted the
MPC rule (hybrid legal is not a defense)
v. Ivy Brothers case tried to use voodoo to kill a judge who had sentenced one of them to prison
1. Attempt is inherently impossible (most would agree that voodoo is not an effective
murder weapon)
2. Factual impossibility what they aimed to do was illegal (so its not pure legal
impossibility); whether voodoo works or not has nothing to do with a legal status (so its
not hybrid legal impossibility)
3. Under both common law and MPC, brothers would be guilty of attempted murder; is this
appropriate outcome?
a. Posed no threat to society
b. BUT did possess culpable mental state
vi. Mitigation MPC 5.05(2) where attempt, solicitation or conspiracy is particularly unlikely to
culminate in commission of the crime, MPC would allow for mitigation to a lesser penalty, or
dismissal of the case altogether
VII. COMPLICITY - the person who does not personally cause some criminal harm may nonetheless be held
accountable for criminal conduct of somebody else if he associated himself with that person in a particular way
(two kinds of complicity: accomplice liability & conspiracy)
a. Accomplice Liability - accountable for the conduct of another person if you assist or encourage that
other person to commit a crime; accomplice liability is derivative - accomplice is responsible only for
crimes actually committed by the principal
i. Principal actually engages in the criminal conduct
ii. Accomplice aids or abets the criminal conduct
1. General Rule derivative liability; accomplices liability derives from the liability of the
principal; both are equally liable for the same crime (if principal committed a murder, the
accomplice committed murder); the accomplice is guilty of the same substantive crime
as the principal; there is no separate crime of being an accomplice
2. The difference between actual culpability of the parties is reflected in the sentencing
3. You can also have an accessory after the fact helps the principal after the crime has
been committed (but this is a separate crime, and usually carries a lesser punishment)
iii. MENS REA for Accomplice Liability - Summary
1. Actus Reus (1) accomplice has to have a purposive attitude with regard to the actus
reus of the principal (he must intend that the principal commit the act that constitutes
the crime); (2) accomplice has to intend to assist the principal in the act
a. Exception: in some jurisdictions, knowledge of principals actus reus may be
sufficient for major crimes
2. Attendant Circumstance accomplice may need to know attendant circumstance
elements of an offense if they materially affect the criminal character of the principals
act (MPC is silent on this issue leaves it up to the courts)
3. Result element parity principle (whatever mens rea is needed for the commission of
the crime) not all offenses have a result element
iv. Mens Rea for Actions of the Principal
1. Hicks v. United States principal (Rowe) murdered Colvard; alleged accomplice (Hicks)
a. Defendant was present, laughed, told Colvard to die like a man; these were
understood as acts of encouragement
b. Supreme Court ordered new trial because it isnt enough that your words tended
to encourage someone, you have to have the purpose that the principal engage
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in the conduct; Hicks had to intend that his words be understood by Rowe as
encouraging the act
c. Supreme Court said that mens rea alone without actually helping at the time
would not be enough unless theres a prior conspiratorial agreement (the
prearrangement would be the aiding)
2. State v. Gladstone defendant advised another student (working undercover for police
dept) where he could buy marijuana; defendant was found not guilty of aiding and
abetting a drug sale
a. He didnt have the purpose or intent that the drug sale occur that he had
knowledge that the crime would probably occur is not enough; you have to have
a purposive attitude towards the crime
b. Same result under the MPC 2.06(3)(a)(ii) person is an accomplice if with the
purpose of facilitating the commission of the offense he aids or agrees or
attempts to aid such other person in planning or committing it (there was no
evidence in this case that defendant communicated w/the drug seller) MPC
requires purpose with regard to the criminal act
3. Criminal Facilitation makes aid without a true purpose a separate crime with a lesser
penalty; you have to believe the crime is probable (not clear whether statute requires
knowledge or recklessness); It matters whether or not the crime committed is a felony
a. This offense catches those who would not be guilty under aiding and abetting
because didnt have purpose, but who with a lesser mens rea assist in the
commission of serious crimes
b. Facilitation is a misdemeanor
4. United States v. Fountain - knowledge is enough if it is a major crime (purpose is still
necessary for a lesser offense); minority rule used in some jurisdictions
5. People v. Luparello defendant wanted to locate an ex-lover; sent several friends to get
information from Martin; one of the friends shot and killed Martin; defendant was
convicted of murder
a. It was not defendants intent that the friends kill Martin (and it actually defeats
his purpose because he cannot get the information he wanted), but court held
defendant responsible as an accomplice for criminal harms that he naturally,
probably and foreseeably set into motion
b. Natural and Probable Consequences Test: defendant can be guilty as an
accomplice not only of offenses he intended to facilitate or encourage, but also
of any reasonably foreseeable offense committed by the person he aids and
abets
c. So court only required negligence in this case (the risk wouldve been
foreseeable to a reasonable person)
d. He was negligent, and yet he was punished for first degree murder (an enormous
responsibility as an aider and abettor) the courts rationale for this departure
from common law standards:
i. He put the chain of events in motion, and the court says he shouldve
known what could happen
e. This case establishes even broader liability than felony-murder (b/c felony-
murder has its limitations) controversial, but yet the rule has been adopted in
many jurisdictions
v. Mens Rea for Results and Attendant Circumstances
1. State v. McVay defendant knew there was an unsafe boiler on the steamer ship, and he
instructed captain and engineer to fire up boiler in an unsafe manner (grossly negligent
manner); defendant was found guilty of manslaughter
a. Defendant did not have the intent to promote or facilitate the killings (no
purpose for the result element), but he is guilty because to be an accomplice you
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need the same mens rea as a principal committing the crime with regard to
result element (parity) for manslaughter you only have to be grossly negligent
b. MPC 2.06(4) parity is also the MPC rule as well as the common law
2. People v. Russell three defendants engaged in a gun battle; innocent bystander (Patrick
Daly) was shot and killed; defendants didnt have a purpose that that act happen they
risked that it would happen they were all found guilty of depraved indifference murder
vi. ACTUS REUS for Accomplice Liability
1. Wilcox v. Jeffrey defendant was found guilty as an aider and abettor of Hawkins
(saxophonist) playing an illegal concert in England; defendant bought a ticket, enjoyed
the concert, omitted from booing, probably clapped
a. Did defendant actually in fact assist for Hawkins to commit the crime? Unclear
did showing up at the airport in fact encourage Hawkins to play at the concert?
did buying the ticket and showing up encourage Hawkins? (if there were 100
other people there we dont know that Hawkins actually knew of the
encouragement); but the court said there was enough evidence to find liability
2. Causation is not required for accomplice liability accomplice need not have caused the
act of the principal
3. Actus reus of the accomplice doesnt need to actually cause the crime, but it has to in
fact assist/contribute in some way for the principal to commit the crime
a. Under common law, no liability for an attempt to aid (ex. if person speaks words
of encouragement to another but the other person is deaf)
b. But MPC includes liability for attempts to aid 2.06(3)(a)(ii)
4. Complicity by Omission MPC provides that a person can be an accomplice is he had a
legal duty to prevent the offense and he fails to do so with the purpose of facilitating or
promoting the crime 2.06(3)(a)(iii)
vii. COMPARATIVE LIABILITY
1. State v. Hayes - defendant suggested to Hill that he help him burglarize a general store;
Hill was a relative of the store owner, so he pretended to agree to help defendant and
told the storeowner of the plan; on the night of the burglary, defendant raised the store
window and helped Hill inside; Hill handed a side of bacon out the window; they were
shortly thereafter apprehended
a. Burglary = entering a building for the purpose of committing a felony therein
b. Defendant was found not guilty of burglary under accomplice liability because
Hill did not commit a burglary (he didnt have the necessary mens rea)
c. Common Law Rule cant convict accomplice if you dont have a guilty
principal; there has to be a guilty act on the part of the principal to impute to the
accomplice (you dont have to try the principal or convict him, but the principal
has to be culpable) same result under the MPC
d. Exception: MPC 5.01(3) is exactly designed to cover situations such as this case;
Hayes is not guilty under accomplice liability, but this attempt provision catches
him (he can be guilty of attempt even though the crime is not committed) so
attempt conviction will result in lesser punishment than if hed been convicted
under accomplice liability
e. Innocent Agent Doctrine: MPC 2.06(2)(a) if Hayes had caused Hill to commit
the offense by pointing a gun at him, Hayes would be guilty b/c Hill is his
innocent agent
2. Entrapment excuse defense (inducement by the government of a defendant who is not
predisposed to commit the offense)
a. Defendant may have a defense of entrapment but only when the feigned
accomplice is a government agent who improperly induces the defendants
criminal activity
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3. If principal is acquitted, can you have a guilty accomplice? Yes, different juries dont
have to find the facts the same; guilt of principal could be established at the trial of the
accomplice, does not have to be established at the trial of the principal
4. Common Law Rule of Regina v. Richards - accomplice cannot be convicted of a greater
degree offense that did not occur even if he had the mens rea for the greater offense
a. ex. Othello committed manslaughter b/c of mitigation of provocation, and Iago
could not be convicted of murder as an accomplice even though he caused the
provocation and had the intent that Othello kill his wife only manslaughter
occurred so thats the most that Iago could be convicted of
b. Contrary approach MPC 2.06(7) can hold accomplice guilty of a different
offense (higher or lower)
viii. Situations where there is no accomplice liability:
1. Under both MPC 2.06(6)(a) and the common law a person is not an accomplice if he is a
victim of that offense
2. A person cannot be guilty as an aider and abettor if his conduct is inevitably incident to
the commission of the offense (ex. person who buys drugs cannot be guilty as an
accomplice for the sale of drugs) - MPC 2.06(6)(b)
3. Abandonment defense defendant is not an accomplice if he terminates complicity prior
to the commission of the offense, but also has to either warn the police or deprive his act
of assistance of its effectiveness, or otherwise make some kind of effort to prevent the
commission of the offense (if you dont do any of these things, its too late and youre
already an accomplice) MPC 2.06(6)(c)
VIII. CONSPIRACY an agreement between two or more people to commit an unlawful act; there is no conspiracy
if there is no agreement
a. Intro
i. We punish conspiracy as an inchoate crime; the point is to reach preparatory conduct before any
criminal act occurs (more inchoate than attempt)
1. Conspiracy is a crime in and of itself you can sometimes be convicted and punished for
both the conspiracy and the object crime
2. MPC 1.07(1)(b) would usually bar a conviction separately for the conspiracy and for the
object crime
a. the code does allow double punishment if the conspiracy has other object
crimes; you can be convicted and separately punished for the object crime you
actually committed and the conspiracy to commit a broader range of crimes
ii. Its thought that group criminal activity is more dangerous that individual activity; youre more
likely to commit an act if working with a group than your own; it enables more complex criminal
acts when there are more hands working together
iii. Prosecution gets special rules with charge of conspiracy (ex. Hearsay may be admitted as
evidence); prosecutors also get an added penalty for group activity over and above that of the
crime itself that is the object of the conspiracy (a separate offense)
b. ACTUS REUS of Conspiracy
i. You dont have to get as close to the object crime as you do for attempt
ii. The act requirement depends on the jurisdiction
1. Some jurisdictions have overt act requirement some overt act towards commission of
the actual crime is required; the overt act can be trivial (doesnt take much); doesnt
have to be committed by each defendant, an act by any co-conspirator will suffice
2. Some jurisdictions follow MPC 5.03(5) overt act is required except for the most serious
crimes, where no overt act is required
3. Some jurisdictions no act is required at all this doesnt mean that crime of conspiracy
is an entirely mental crime, the act of agreement is enough; this is the common law rule
iii. Interstate Circuit v. United States - defendants were charged with violation of anti-trust law;
prosecutor had to show that there was a conspiracy among the 8 distributors to restrain trade
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1. Court concluded that there was a conspiracy because:
a. Movie theatres sent the letter to all the distributors setting forth terms for
exhibiting the films; each letter identified all the other recipients of the letter
b. All distributors conformed to the letter
c. There was an economic disadvantage for just one to conform to the letter; if
everyone did it then they could get away with it by eliminating competition and
setting higher prices
d. The court infers from the fact that they received the letter, the matter in which it
was set forth, and the unanimous action they all took on the proposed action,
that it wouldve been economically disadvantageous unless they all agreed to it
2. Court held that an express agreement is not necessary, an implied (tacit) agreement is
sufficient, which can be inferred from circumstantial evidence (parallel complimentary
action)
c. MENS REA of Conspiracy
i. Two mens rea elements for conspiracy:
1. You have to intend to agree (cant agree by accident)
2. You have to intend the object crime (in some cases, knowledge may be sufficient)
ii. People v. Lauria defendant owned telephone answering service that was used by prostitutes;
defendant was indicted for conspiracy to commit prostitution
1. Defendant knew that his service was being used by prostitutes, but court found him not
guilty of conspiracy because he didnt have the purpose that the prostitutes engage in
prostitution (it wasnt his purpose or aim that they commit the crime; he didnt care
what they did as long as they paid their bill) knowledge is not enough
2. Knowledge may be sufficient for conspiracy liability if the object crime is a felony (but
this is not a decided issue; it depends on the felony)
a. Reasoning: when youre dealing with a serious felony, you may have a duty to
disassociate yourself from the commission of the crime
iii. MPC always requires purpose to further the venture 5.03(1), knowledge is insufficient no matter
how serious the object crime may be
iv. How purpose may be established:
1. If the defendant had a stake in the venture
2. If defendant provided goods or service for which there is no lawful use
3. If the volume of business with the buyer is grossly disproportionate to any legitimate
demand
4. If sales for illegal use amount to a high proportion of the defendants total business
d. Conspiracy as ACCESSORIAL LIABILITY
i. Pinkerton v. United States Daniel Pinkerton was held liable for criminal acts committed by his
brother Walter while Daniel was in jail
1. Courts justification for holding Daniel liable:
a. As long as the conspiracy continues, the partners act for each other in carrying it
forward
b. So if any one actor is acting to carry it forward, the others are liable
c. As long as the enterprise exists, the partners are responsible for the acts in
furtherance of the enterprise
2. Requirements for Pinkerton liability: (before you get to these 3 elements, you first have
to find that there was an agreement)
a. Act has to be within the scope of the conspiracy
b. Crime must be in furtherance of the conspiracy
c. Has to be reasonably foreseeable as a necessary or natural consequence of the
conspiracy
3. If there was an agreement and all 3 Pinkerton elements are satisfied, conspirator can be
held liable for crimes committed by co-conspirator
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ii. Conspiracy liability is broader than accomplice liability
1. Actus Reus - accomplice liability requires an actual act on the defendants part that
actually helps the principal; thats not required for Pinkerton liability
2. Mens Rea (for the substantive offense) for accomplice liability you need to have
purpose that principal commit the crime, but for conspiracy liability its enough if the
crime was reasonably foreseeable (its a kind of negligence level mens rea)
3. Exception: Luparello standard would not fall under conspiracy liability because the
killing was not in furtherance of Luparellos purpose
iii. Pinkerton liability can be even more expansive than felony-murder
1. State v. Bridges defendant got into an argument at a party; defendant planned to fight
the person and had his friends get guns to hold other partygoers at bay during the fight;
the friends fired into the crowd, killing an innocent onlooker
a. Court eliminated the first element of Pinkerton (scope) and relied on
foreseeability
b. Defendant was held guilty as a co-conspirator of first-degree murder; he was
negligent with regard to the killing of the bystander (he shouldve known that
friends bringing guns couldve resulted in a shooting) his liability is grossly out
of proportion to his culpability
2. United States v. Alvarez - Court added additional conditions for applying Pinkerton: if the
resulting crime was unintended, you can hold co-conspirators liable only if they played
more than a minor role or had actual knowledge of some circumstance culminating in
the crime
IX. EXCULPATION further considerations that negate culpability even when all elements of the offense are
clearly present
a. Justifications the defendant is responsible, but the act is not a bad act under the circumstances; all
justifications center around necessity; ex. self-defense, defense of property, law enforcement, choice of
lesser evil (Dudley & Stephens case)
i. Self-Defense
1. Common law elements of self-defense
a. There has to be an actual or apparent threat of force
b. Threat has to be unlawful
c. Threat has to be imminent
d. The response has to be necessary
i. There has to be a subjective belief that the response is necessary
ii. That belief has to be objectively reasonable
2. Deadly force in self-defense is only allowed when the threat is a threat of death or
extreme bodily harm
3. People v. Goetz court held that defendants belief that force was necessary must be
objectively reasonable (not a completely subjective standard)
a. Reasoning for courts interpretation:
i. Policy reason: if standard was totally subjective, then no matter how
bizarre the defendants belief was, he would be justified in killing
someone
ii. NY law is modeled after the MPC the MPC does not have reasonable
in its version; the NY legislature added the word, so court infers
legislative intent that they wanted there to be an objective standard
iii. Objective component was an element of the common law standard
b. Jury acquitted Goetz at the time, people saw him as a vigilante hero
4. Why was MPC written with a wholly subjective standard?
a. If youre talking about an average person, unless theyre crazy then you dont
know what is reasonable in a frightening situation b/c youre not there and you
cant second-guess them
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b. Any reaction to a perceived threat is reasonable by definition
5. MPC 3.09(2) self-defense is not a justification if you are reckless or negligent in your
belief that such force is necessary (if Goetz was reckless or negligent, couldve been
guilty of attempted murder or manslaughter)
6. State v. Kelly defendant stabbed her husband with a pair of scissors during a public
fight; the issue in the case was whether her belief of necessity of self-defense was
objectively reasonable and whether she subjectively believed such force was necessary
a. Trial court had excluded expert testimony about battered-womans syndrome
b. State supreme court held that such evidence was relevant to the objective
reasonableness of defendants belief; court said the testimony was relevant to
dispelling misconceptions that jurors may have that defendant couldnt be
honest if she said she thought her life was in danger and yet she did not leave
the marriage
7. Problem with personalizing the standard if we allow the standard by which we judge
the reasonableness of a defendants actions to be personalized, it becomes a problem of
where do we draw the line (ex. do we judge defendants actions from perspective of a
reasonable mugging victim? reasonable battered woman? reasonable depressed person?
etc.)
8. State v. Norman court affirmed conviction for voluntary manslaughter, saying that
defendant had not acted in self-defense imminent danger element was found lacking
(husband was asleep at the time defendant shot him)
a. General Rule: Courts require imminence for self-defense (self-defense is based
on necessity no necessity if theyre not threatening your life at that moment
that the killing happened)
9. Requirement of necessity gave rise to common law rule of RETREAT: you had to retreat if
it was possible to do so safely, because it wasnt necessary to use force if it was possible
to retreat
a. Exception: mans home is his castle; you dont have to retreat in your own harm
b. Exception to exception: you do have to retreat if your attacker also lives in the
home
c. Many states in US do not require retreat; even in jurisdictions where you are
required to retreat, youre not required to retreat in your own home even if the
attacker lives there
10. You lose your right of self-defense if you are the initial aggressor; there is no necessity if
you start the fight you cant claim self-defense if you purposely provoked someone to
attack you with the intent of using deadly force in return MPC 3.04(2)(b)(i)
a. Exception: if youre the initial aggressor and you start with non-deadly force, but
in the course of the fight the other person comes back at you with deadly force,
the victim then becomes the initial aggressor as far as deadly force goes for self-
defense purposes
b. Excuses the conduct is bad, but under the circumstances the defendant is not responsible; excuse
defenses focus on the actor and not the act; all excuse defenses are predicated upon the presence of
some disability or disabling condition affecting the actor
i. Duress
1. State v. Toscano defendant (chiropractor) was charged with conspiring to defraud an
insurance company; he claimed he acted under duress; court rejected his excuse because
the threat was not sufficiently imminent and was vague (also had a problem with his
credibility) imminence is required because were not going to excuse defendant for
choosing to commit an act when he couldve avoided it (couldve gone to the police)
a. Elements of Duress defense:
i. Threat or use of unlawful force/injury against a person (not necessarily
the defendant)
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ii. Coercion
iii. Somebody of reasonable firmness in defendants situation would not
have been able to resist that threat (reasonable person standard)
b. Duress is a defense to crime other than murder why?
i. Homicide is always the more serious crime, so youre not choosing the
lesser evil (this explains duress as a justification, but not really as an
excuse)
2. Difference between necessity and duress (in some jurisdictions):
a. Necessity applies only when the threat that made you commit the crime comes
from a natural event
b. Duress applies when the threat comes from a person
c. (in such jurisdictions, duress is a justification but only available when your
choice of committing the crime was choosing the lesser evil)
3. MPC 2.09 duress is not a defense if the actor recklessly or negligently placed himself in
a situation in which it was probable that he would be subjected to duress
4. The duress defense reflects a conflict between identifying and exonerating defendants
who seem in some way to lack some degree of fault and on the other hand we see the
concern of the problem of weakening the incentives for following the criminal law if
you let too many people off, you have a slippery slope towards non-normative
enforcement of the law; weighing justice to the individual against the need for normative
standards for behavior that were all required to follow