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Criminal Law Spring 2012

I. INTRODUCTION ......................................................................................................................................................................2
WHAT YOU NEED TO KNOW FOR THIS COURSE ........................................................................................................................................... 2
THEORIES OF PUNISHMENT .......................................................................................................................................................................... 2
(WHAT IS CRIMINAL LAW) ........................................................................................................................................................................... 3
WHY DO WE PUNISH (JUSTIFYING AIMS) .................................................................................................................................................... 3
RESTRICTIONS ON PUNISHMENT: PROPORTIONALITY ............................................................................................................................. 4
LAW BY STATUTE: LEGALITY ....................................................................................................................................................................... 4
LAW BY STATUTE: CLARITY AND INTERPRETATION ................................................................................................................................ 5
II. ACT REQUIREMENT (ACTUS REUS) ................................................................................................................................7
(DEFINING ACTUS REUS) .......................................................................................................................................................................... 7
VOLUNTARY ACT............................................................................................................................................................................................. 7
OMISSIONS ....................................................................................................................................................................................................... 8
ACTUS REUS EXAMPLE: POSSESSION.......................................................................................................................................................... 9
SOCIAL HARM ................................................................................................................................................................................................10
III. MENTAL STATE (MENS REA)........................................................................................................................................ 10
INTRODUCTION: THE CONCEPT AND ITS FUNCTION ...............................................................................................................................10
MPC FRAMEWORK .......................................................................................................................................................................................12
HIERARCHY OF MENTAL STATES ...............................................................................................................................................................12
INTENT............................................................................................................................................................................................................12
KNOWLEDGE ..................................................................................................................................................................................................13
RECKLESSNESS ..............................................................................................................................................................................................14
NEGLIGENTLY ................................................................................................................................................................................................14
MENS REA AND STATUTORY INTERPRETATION ......................................................................................................................................15
STRICT LIABILITY..........................................................................................................................................................................................15
MISTAKE OF FACT.........................................................................................................................................................................................16
MISTAKE OF LAW..........................................................................................................................................................................................17
IV. HOMICIDE: GRADING AND CAUSATION ................................................................................................................... 19
COMPARATIVE STATUTORY SCHEMES.......................................................................................................................................................19
HOMICIDE.......................................................................................................................................................................................................19
INTENTIONAL KILLING (MURDER) ............................................................................................................................................................19
HEAT OF PASSION MANSLAUGHTER ......................................................................................................................................................21
RECKLESS HOMICIDE....................................................................................................................................................................................24
NEGLIGENT HOMICIDE .................................................................................................................................................................................26
FELONY MURDER ..........................................................................................................................................................................................27
V. RAPE AND SEXUAL ASSAULT ........................................................................................................................................ 30
VI. ATTEMPT ............................................................................................................................................................................ 33
BASIC ATTEMPT DOCTRINE ........................................................................................................................................................................33
IMPOSSIBILITY ...............................................................................................................................................................................................36
VII. CONSPIRACY: THEORY AND MENTAL STATE...................................................................................................... 38
CONSPIRACY: ACTUS REUS OF OVER ACT (OR AGREEMENT) ................................................................................................................40
CONSPIRACY: AGREEMENT AND SCOPE....................................................................................................................................................41
ACCOMPLICE LIABILITY ...............................................................................................................................................................................43
VIII. DEFENSES ......................................................................................................................................................................... 46
INTRODUCTION AND BURDENS OF PROOF ................................................................................................................................................46
JUSTIFICATION: SELF-DEFENSE.................................................................................................................................................................49
JUSTIFICATION: NECESSITY ........................................................................................................................................................................57
EXCUSE: DURESS ..........................................................................................................................................................................................58
IX. SENTENCING AND PRISONS .......................................................................................................................................... 60

Criminal Law Spring 2012

I. INTRODUCTION
What you need to know for this course

First tier:
o How to read (parse) a statute
o How to argue about a statute
o How to understand MR (fault)
Second tier:
o How to argue about the purposes of punishment
Under the theories of punishment, below
o How to think about the limits of criminalization (the what and the how)
Play in the joints
o How to connect all of the above when discussing facts
Moving facts both ways.

Theories of Punishment
Utilitarian Justification
Forward looking doctrine that by punishing people for crimes now, we will deter future crimes.
CONSEQUENTIALIST ARGUMENT
EX ANTE, FORWARD LOOKING
SOCIAL POLICY
INSTRUMENTALISM
EXPRESSIVE FUNCTION OF LAW
Looks to the efficiency of punishments
Assumes that humans are hedonistic; ie pleasure seeking
Focus on the ACTUS REUS or RESULT elements.
1. General Deterrence- when you punish one person, you send the message to the rest of
society that you can expect to be punished the same way for a similar crime
2. Specific Deterrence- when you punish one person, you deter them from committing
crimes in the future. Two ways:
a. By incapacitation- you take the person out of society (prison)
b. By intimidation- you scare the person enough that they wont want to be punished
again and thus dont commit more crimes in the future
3. Marginal Deterrence-if youre going to be a criminal, be a less bad one!
a. Levels:
i. Deter from criminal activity
ii. If cant deter from serious criminal activity
iii. If cant, deter from specifically serious crime.
b. Can be general or specific.
4. Rehabilitation- use the penal system to change the person such that they wont commit
crimes in the future (Note: Kent Grenawalt says that this is largely unsuccessful in
practice)
a. Some say the problem is the system we have is not set up for rehabilitation, but
punishment could rehab

Criminal Law Spring 2012

Retributive Justification
the distinctive aspect of retributivism is that the moral desert of an offender is a sufficient reason
to punish him or her- Michael S. Moore
DEONTOLOGICAL ARGUMENT
RETRIBUTIVE/MORAL/JUSTICE ARGUMENTS
VIRTUE ETHICS
EX POST, ISOLATED CASES
Usually applied ex post- does this particular defendant deserve punishment?
Essentially, ask whether this is a person who made a bad moral choice.
Retributivism seeks to correct an imbalance: criminal harms society and they must be
punished to correct the wrong to society
Forcus on the MENS reA.
1. Positive Retributivism- Those who have more desert (are guilty) should be punished.
Moral desert is a necessary and sufficient justification for punishment.
2. Negative Retributivism- Guilt is a necessary condition for punishment
3. Assaultive Retributivism- Criminals are noxious insects to be ground under the heel of
society.
4. Protective Retributivism- criminals have a right to punishment; it pays deference to the
individuals choice to act a certain way that has a specific punishment; you made a free
choice, now you must live with the consequences
5. Victim Vindication- vindicate what has happened to the victim; in line with the moral
balancing

(What is Criminal Law)


not sure if I need anything in this section.

Why do we punish (Justifying Aims)


D 48-71
Cases
The Queen v. Dudley & Stephens cannibalism on the boat
People v. Du store clerk shoots victim in back, gets probation
United States v. Gementera mail fraud and shaming/humiliation
Justifying Aims for punishment:
General and legitimate justifying aims:
Retributivism
The right of retaliation (jus talionis) if you steal you make property of all
insecure, and rob yourself of security in his property
He who murders must die because no juridical substitute or surrogate
Enough to punish.
See above
Utilitarianism
The value of the punishment must not be less in any case than what is sufficient to
outweigh that of the profit of the offense
The greater the mischief, the greater is the expense

Criminal Law Spring 2012

Punishment must be sufficient to induce a man to choose the lesser of the two
crimes
No more than necessary to deter/improve society.
Illegitimate justifications:
Shaming/humiliation (see Gementera)
The types of punishment that we use can reveal our justifying aims:
Type:
Death
Prison
Monetary sanctions
Probation
Service
Restortative justice
Shaming?
Severity
Proportionality
Marginal deterrence
Equality
US Sentencing

Restrictions on Punishment: Proportionality


its gotta beproportional?

Law by Statute: Legality


D 92-105; Supp 104-106
No crime without law, no punishment without law
The principle requires all law to be clear, ascertainable and non-retrospective.
Cases
Commonwealth v. Mochan all offenses previously punishable at common law are still
crimes even if not in the Act
Court holds an act is indictable at common law which scandalously affects morals or
health of community.
Dissent says overbroad and intrusion into legislatures role
Keeler v. Superior Court Feticide case
Court says 1850 Act didnt intend unborn fetus to count, so not guilty of murder
Professor Gates indictment under disorderly conduct statute
Report characterized his behavior in terms of the statute.
A Statute from Nazi Germany
Reasoning behind the principle:
Fair notice as due process (clarity, vagueness, and overbreadth):
Avoiding vagueness of laws in order to provide notice (14A)
A law is VAGUE when you can imagine a situation where you do not know what
it meant.
Person may not be punished unless the statute is sufficiently clear that a person of
ordinary intelligence can understand its meaning [MPC 1.02(1)(d)]

Criminal Law Spring 2012

NOT necessary that a person actually does understand (mistake of law is not a
defense)
But that they COULD understand.
This is a Constitutional Due Process Doctrine
BUT NOTE Why? So that criminals can choose to be criminals or not (HLA
Hart). That seems nonsensical.
Avoiding overbreadth of laws in order to provide notice (probably also 14A)
(does overbreadth fit here)?
A law is OVERBROAD when you can imagine where it would punish
someone unfairly.
This can be construed as a notice problem.
Constraining enforcement discretion (not a constitutional doctrine):
Want to minimize the play in the joints at the enforcement levelminimize
subjective and ad hoc
NOT entirely a constitutional doctrine! The constitution would allow more
enforcement discretion than we like
BUT NOTE some play in the joints may be acceptable depending on whether a law is
a:
DECISION RULE: addressed to administrators to guide their decisions, less
specific. Subjective decision OK.
Or CONDUCT RULE: addressed to the public, more specific. Subjective
decision much less OK.
BUT NOTE some laws are specifically designed to allow enforcement discretion as a
tool for law enforcementdisorderly conduct statutes.
Legislative Primacy (14A):
Legislature should make the laws; not the judiciary:
Constitutional doctrine: Due Process Clause prohibits judicial law-making after
the fact of the crime.
Judges can, however, interpret the lawis there a difference? See below
BUT NOTE that the legislature, though arguably should be in the business of law
creation, cannot do so ex-post facto. US Constitution Art. I 9,10.
Equality:
If a law is unpredictable in enforcement, then going to jail is like winning (losing) the
lottery.
Error deflection:
We should err on the side of under-criminalizationworse to put people in jail.

Law by Statute: Clarity and Interpretation


D 105-126; Supp 107-109
Cases
In re Banks Secretly peeping into room occupied by female person
Court turns secretly into a mental state must have intent to invade privacy
They claim to be interpreting the law, but maybe they are really making it.
City of Chicago v. Morales ganges and loitering
Court says gives too much discretion to police, vagueness problem

Criminal Law Spring 2012

Muscarello v. United States meaning of carry


Purpose of statute is to discourage bringing a gun to the drug deal, should read carry
to mean bring with you to car
All opinions of the court use plain meaning principles to interpret, and then also seem
to use policy reading, applying marginal deterrence. Interestingly, they rach different
results
No rule of lenity because there needs to be a tie
United States v. Fowler (robbers kill cop who finds them preparing)
Circuits almost all unanimous in holding that an officer could have gone to the Feds
is sufficient to invoke this statute
Dissent probably takes the most direct plain-meaning approach.
Scalia purports to take a plain-meaning approach, but looks policy-oriented.
Breyer majority takes an instrumentalist approach.
Why allow interpretation? IT IS IMPOSSIBLE TO ACHIEVE PERFECT CLARITY
OF LAWS:
Thus, we need to allow some interpretation of imperfect laws in order to actually enforce
them as we want to.
But we do not want to transgress the line into making law ex post, rather than interpreting
it. This would be violating the legality principle.
Want to find the balance between using statutory interpretation to allow enforcement and
adhering to the legality principle by prohibiting the improper making or enforcement of
law.
The tension:
Set of concerns with liberty interest
Basically, have an interest in maintaining the legality principle, including:
Notice problems: Have a right to be told what law will do if you act
Discretion problems: Government must have certain constraints
Set of interests about having laws that are effective
Basically, have an interest in adequate enforcement:
Have to allow some flexibility in order to have the desired level of social
control
Need some judicial interpretation.
The process of judicial interpretation (and a loose hierarchy):
plain language
purposes of the statute
MPC 1.02(3) says if provision is unclear, go back and think more about the purpose
of the law. Seemingly rejecting the rule of lenity
Phrasing
Ordinary vs. technical meaning
Prior law
Harm or wrong targeted
End to be accomplished
Legislative history/circs of adoption
Prior interps of same or similar statute
Why not a little Latin?
In pari material (statutes w/ common prpose)

Criminal Law Spring 2012

Ejusdem generis (general after specific)


Noscitur a sociis (known by associates)
NOTE THAT the rule of lenitycomes AFTER all of these moves, if at all. It is NOT
an interpretive move, but a ailure of interpretation.
Rule of lenity interpretation of ambiguous statutes should be biased in favor of the
accused
MPC 1.02(3) says if provision is unclear, go back and think more about the purpose
of the law. Seemingly rejecting the rule of lenity

II. ACT REQUIREMENT (ACTUS REUS)


(Defining Actus Reus)
again, he didnt do this this year. Buell is such a pro! More likePro d-bagyoull see, 1Ls.
He sucks.

Voluntary Act
D 127-135
Cases
Martin v. State drunk in public
Cant be guilty if involuntarily and forcibly carried to that place by a public officer
no voluntary act besides getting drunk. Appearance in public must be voluntarythe
voluntary act is read into the statute.
State v. Utter Dad kills son, claims conditioned response
Reflex would normally not be a voluntary act, and he would win if he had evidence.
But there was not enough evidence to determine what happened in the room (since he
was drunk at the time and did not remember, so could not give an affidavit), so does
not get to present defense
Voluntarily induced unconsciousness is not a defense
Doctrine
MPC 2.01(1): Person is not guilty of an offense unless his liability is based on conduct
which includes a voluntary act or omission to perform an act of which he is physically
capable
MPC 2.01(2): The following are not voluntary acts:
Reflexes or convulsions
bodily movement during unconsciousness or sleep,
conduct during hypnosis or resulting from hypnotic suggestion
bodily movement that is otherwise not a product of the effort or determination of the
actor, either conscious or habitual
MPC does not define voluntary act; act defined in 1.13(2)
ALI says: not voluntary = not a product of the effort or determination of the actor.
Therefore, voluntary act = willed movement or contraction.
NY PENAL LAW 15.00 2: voluntary act means a bodily movement performed
consciously as a result of effort or determination
Unaware (in the sense of not paying attention, such as while driving) involuntary
Lack of cognition v. coerciona coerced act MAY NOT BE VOLUNTARY.

Criminal Law Spring 2012

Normative justifications:
Utilitarian:
Ability to defend against chargecan legitimately say you did not act.
Harm
Danger
Liberty?
Retributive:
Firmness of resolve = deviance
Liberty?
Differentiating between VA, MR, and R:
Voluntariness largely subsumed within elemental, specific mens-rea-oriented offenses:
Because, in the narrow, elemental sense of the MR a person commits an offense with
the particular mental state (P, K, R, or N) set out expressly in the definition of that
offense. In order to do this, the person usually must be acting voluntarily.
Status offensesbeing in a location without any further MRare largely gone, but
would require a voluntary act. Possibly remnants of culpability-general MR offenses.
But strict liability (SL) still requires voluntariness, even without a further MR
requirement.
MR, VA, are different concepts:
State of mind re: social harm (elemental, specific mens rea) v state of mind re:
act that causes social harm (voluntariness)
Voluntary:
I am aware that I am pulling a trigger of a gun
I am aware that I am driving voluntarily
Elemental, specific Mens rea:
I know that pulling the trigger will cause the death/it is my purpose to cause
death
I know that I am drunk (is MR actually necessary for this crimeis there
an MR, or is this an SL offense?)
Result:
B in fact dies as a result.
(No result for drunk driving)

Omissions
D 136-148
Cases
People v. Beardsley Man having affair leaves mistress after she ingests drugs
There was not a relationship that imposes a legal duty
Barber v. Superior Court life support case
Court turns act (removing the life support) into an omission (cessation of life support)
Says doctor has no duty to continue treatment once proved ineffective
This looks result-oriented.
Doctrine
Common Law: The duty neglected must be a legal duty, and not a mere moral obligation
MPC 2.01(3) omission is insufficient unless:
(1) expressly made sufficient by law; or

Criminal Law Spring 2012

must expressly be made sufficientunless the law declares omission sufficient


expressly,
(2) a duty to perform the act is imposed by law.
Or a duty must be imposed by law
NY PENAL LAW 15.00 3: omission means a failure to perform an act as to which a
duty of performance is imposed by law
Instances where an omission constitutes breach of legal duty Jones v. US (D.C. Cir):
Statute imposes legal duty
Certain status relationships spouse, child, others
Contractual duty to care for another lifeguard, babysitter
Voluntarily assumed duty of care of another if you start, cant leave them worse off
Normative justifications/questions:
Retributive:
Is there a moral distinction, all else equal, between action and non-action (eg killing
and letting die?)
If yes, what is it?
Even if so, is this countered by another moral intuition
American sense of personal autonomy: criminal law should not coerce people to
have to act to benefit others?
Utilitarian:
Even if there is a moral distinction, where do you draw the line?
What is the space, if any, between the answer to the moral question and the question
what should be criminal?
Maybe our American sense of personal autonomy also has a utilitarian
justificationnon-paralysisand comes in here, too.
2 things driving our intuitions about omissions
relationships
degree of callousness v. amount of effort required to help

Actus Reus Example: Possession


Supp 141-158
Cases
People v. Lee open container case
Unconstitutionally broad because punishes things legislature wasnt trying
criminalize
Overbreadth as a potential problem with possession
Potentially improper administration of the RBR standard.
People v. Rivera telling another to fire the gun
Rivera had complete dominion and control over the weapon
People v. Valot - rent hotel and weed
Valot may have exercised control over the weed, if not him, then who do you get
By paying the rent, he had control over the room, liable for the weed
Doctrine

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Criminal Law Spring 2012

MPC 2.01(4): Possession is an act if the possessor (1) knowingly procured or (2)
[knowingly] received the thing possessed or (3) was aware of his control thereof for a
sufficient period to have been able to terminate his possession
Possession more like an omission (failure) to dispossess
NY PENAL LAW 15.00 2: voluntary actincludes the possession of property if the
actor was aware of his physical possession or control thereof for a sufficient period to
have been able to terminate it.
Presumably, the NY PENAL LAW also would allow one and 2 from the MPC, since
those would just be regular voluntary acts.
For both NY PENAL LAW and MPC, need:
Knowledge that you have the item
Some knowledge that it is what it is.
Although we may not think of possession as an act, but more of an omission to terminate
possession, it has been declared an act by legislative fiat.
Types of possession
Simple: punished just for having the forbidden item; presumes intent to consume
Compound: punished for having and the intent to use; presumes intent to distribute
Actual: most basic form of possession
Constructive:
Allows joint possession
Dominion and control over a person
Dominion and control over an area
Normative justifications
Stamping out the market (utilitarian):
In criminalizing possession, the legislature implicitly criminalizes import,
manufacture, purchase, use, etc. of the item.
Like child porn.
Presumes the offense (utilitarian & retributive):
Implicit presumptions of use or acquisition
Proximity to risk (utilitarian):
Possession can also create a risk that the legislature is trying to avoid
Thing itself creates some risk, like explosives

Social Harm
Destruction of, injury to, or endangerment of, some socially valuable interest.
Categories of Social Harm
1. Result Crimes- the result is what is prohibited (ex- murder)
2. Conduct Crimes- specific conduct prohibited (ex. Driving while intoxicated)
3. Attendant Circumstances Elements- not a crime unless certain facts outside the actors
control are present.

III. MENTAL STATE (MENS REA)


Introduction: the Concept and Its Function
Cases

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United States v. Cordoba-Hincapie historical discussion of mens rea


Regina v. Cunningham steals money from gas meter, causes leak almost, kills woman
Requirement of Malice is not simply a requirement for general intent of ill will, but a
specific intent requirement.
Malice means either: (1) actual intention to do the particular kind of harm; or (2)
recklessness as to whether such harm should occur or not
The court says malice is shorthand for two distinguishable states of mind
Defining specific intent vs. General intentsome idiosyncratic usages:
Definition #1:
General intent: broad, culpable MR of ill will, any of P, K, R, or N.
Specific intent: narrow, elemental MRone of P, K, R, or N set out as an element.
Definition #2:
General intent: an offense allowing P, K, R, or N
Specific intent: an offense requiring P or, at least, K.
Definition #3 (most common):
General intent: intent to do the AR
Specific intent: intent beyond the MR, for future damage, special motive, or
awareness of an AC.
Motive specific intentyou can have specific intent even if your motive is different.
DOCTRINE:
In both MPC and NY PENAL LAW, you find MR reqs. by looking to the statute,
and figuring out the LEVEL of the MR required, and the particular OBJECT of
that requirement.
This is done with a series of rules, below. For the rules that deal with unclear
statutes, such as 2.02(4) and 15.15, the purpose of the legislature becomes important,
and you do all of the interpretive moves for statutes that we looked at above.
Plain meaning
Purpose
policy
MPC 2.02
Level intent required Inquiry: What is the level of MR?
2.02(2): P, K, R, N
2.02(3): MR = at least R if not stated
2.02(4): Presume stated MR applies to all MEs
unless an alternative legislative purpose plainly appears
2.02(5): greater includes lesser
2.02(6): presume P includes conditional P
2.02(7): K includes high probability (WB)
2.02(8): presume "wilfully" = K
Object Inquiry: To what does the MR apply?
2.02(1): MR required as to MEs (except per 2.05)
2.02(3): MR = at least R if not stated
2.02(4): Presume stated MR applies to all MEs
unless an alternative legislative purpose plainly appears

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1.13(10): ME = not SOL, jur, venue, otherwise unrelated to harm or evil statute
targets
NY PENAL LAW 15.15:
Level/object inquiry:
15.15 1: presume stated MR applies to all MEs
unless an alternative purpose plainly appears
15.15 2: at least some MR, derived from purpose, unless the statute is explicitly
strict liability.
Doctrine of transferred intent:
No real such thing as transferred intent.
Just a clarification that intent does not exist in the perpetrator only in relation to an
intended victim, but is intent to do the thing.
Ex: the law says intentional killing of a person, not the intended victim
Thus, intent to kill one person can suffice for intentional killing if death of another
results.
Normative Justifications for the MR inquir(ies):
Utilitarian- person who commits an act without meaning to could not have been deterred,
reformed, or rehabilitated.
But- some persons may be accident prone, and they represent a danger to the
community
Prevents people from fraudulently claiming a lack of MR
Retributive- Person who commits the act accidentally does not deserve to be punished;
they do not have moral desert.
MR is primarily retributivewithout culpable MR, there is no guilt.

MPC Framework
Hierarchy of Mental States
Intent
D 149-159
Cases
People v. Conley guy his another with bottle, charged w/ aggravated assault
State must prove Conley had either conscious objective to achieve the harm or
conscious awareness that the harm was practically certain to be caused
Statute required intent or knowledge
The evidentiary issue: INTENT CAN BE INFERRED FROM KNOWLEDGE or
other evidence, including natural and probable consequences.
Doctrine
Common Law
A person commits a crime intentionally if
It was the persons concious object to cause the result or
It was virtually certain to occur as the result of her conduct
Criminal intent may be transferred if the result of the conduct differs from the intent
only with respect to the victim.
MPC:

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2.02(2)(a): A person acts purposely with respect to a material element of an offense


when:
(i) 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
(ii) if the element involves the attendant circumstances, he is aware of the
existence of such circumstances or he believes or hopes that they exist.
2.02(6): Requirement of Purpose Satisfied if Purpose Is Conditional.
When a particular purpose is an element of an offense, the element is established
although such purpose is conditional, unless the condition negatives the harm or
evil sought to be prevented by the law defining the offense.
NY PENAL LAW 15.05 1: Intentionally: a person acts intentionally with respect to a
result or to conduct described by a statute defining an offense when his conscious
objective is to cause such result or to engage in such conduct.
The evidentiary issue: INTENT CAN BE INFERRED FROM KNOWLEDGE or other
evidence, including natural and probable consequences.

Knowledge
D 159-170
Cases
State v. Nations hiring a stripper less than 17 years of age
The legislature in Missouri did not enact 2.07, so willful blindness is not sufficient to
establish knowledge
The state proved recklessness which cannot sustain conviction because needed
knowledge
People v. Conley guy his another with bottle, charged w/ aggravated assault
State must prove Conley had either conscious objective to achieve the harm or
conscious awareness that the harm was practically certain to be caused
Statute required intent or knowledge
The evidentiary issue: KNOWLEDGE CAN ALSO BE INFERRED
Doctrine
Common Law
A person acts knowingly regarding an attendant circumstance if she either:
Is aware of the fact;
Correctly believes it exists; or
Suspects that it exists and purposefully avoids learning if her suspicion is correct
(willful blindness)
Criticism- said to be a stretch of the definition of knowledge
MPC
2.02(2)(b): A person acts knowingly with respect to a material element of an
offense when:
(i) 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
(ii) 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.

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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.
Kind of gets at willful blindness, but doesnt require actor takes step to avoid
NY PENAL LAW 15.05 2: Knowingly: a person act knowingly with respect to conduct
or to a circumstance described by a statute defining an offense when he is aware that his
conduct is of such nature or that such circumstances exist.
Notice that there is no practically certain result provision

Recklessness
Common Law
A person acts recklessly of she should be aware that she is taking a very substantial and
unjustifiable risk. Oliver Wendell Holmes, Jr.
Modern definition: Conciously disregards a substantial and unjustifiable risk that her
conduct will cause the social harm
Unjustified Risk Taking: Look at 3 factors
Gravity of harm that a reasonable person would foresee might occur as a result of
their risk taking
Probability the harm will occur
Reason for taking the risk (benefit to individual or society?)
No bright lines to separate this from negligence, and the civil equivalents of recklessness
and negligence
MPC 2.02(c): 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 actor's conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct that a law-abiding
person would observe in the actor's situation.
Involves conscious risk creation
Jury is to asked to: (1) examine the risk and the factors that are relevant to how
substantial it was and to the justifications for taking it (subjective from actors
perceptions); and (2) make a culpability judgment in terms of whether the defendants
conscious disregard of the risk justifies condemnation (objective from what a law-abiding
citizen would have observed)
Permits the courts to introduce subjective standard taking into account characteristics of
the situation or the actor and the circumstances known to him.
More flexible than common law
NY PENAL LAW 15.05 3: Recklessly: A person acts recklessly with respect to a result or
to a circumstance described by a statute defining an offense when he is aware of and
consciously disregards a substantial and unjustifiable risk that such result will occur or that
such circumstance exists. The risk must be of such nature and degree that disregard
thereof constitutes a gross deviation from the standard of conduct that a reasonable
person would observe in the situation. A person who creates such a risk but is unaware
thereof solely by reason of voluntary intoxication aso acts recklessly with respect thereto.

Negligently
Common Law

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Should be aware that her conduct creates a substantial and unjustifiable risk of social
harm
AKA gross negligence or culpable negligence
Degree of risk usually higher than required by tort
Punished because he failed to live up to societal standard of conduct of a reasonable
person
MPC 2.02(2)(d): A person acts negligently with respect to a material element of an offense
when he should be aware of a substantial and unjustifiable risk that the material element
exists or will result from his conduct. The risk must be of such a nature and degree that the
actor's failure to perceive it, considering the nature and purpose of his conduct and the
circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor's situation.
NY PENAL LAW 15.05 4: "Criminal negligence." A person acts with criminal negligence
with respect to a result or to a circumstance described by a statute defining an offense
when he fails to perceive a substantial and unjustifiable risk that such result will occur or
that such circumstance exists. The risk must be of such nature and degree that the failure
to perceive it constitutes a gross deviation from the standard of care that a
reasonable person would observe in the situation.

Mens Rea and Statutory Interpretation


Strict Liability
D 175-193
Cases
United States v. Cordoba-Hincapie Background case
If punishment of the wrongdoer far outweighs the regulation of the social order as a
purpose of the law, then MR probably required
If the penalty is light, involving a relatively small fine and not including
imprisonment, then MR probably not required
Especially if the thing regulated is itself dangerous (providing 14A DP
warning/notice).
Staples v. United States firearm which is not registered
No mens rea requirement in statute, so SCOTUS says knowledge as to the attendant
circumstances
Majority says because large punishment, unlikely Congress meant to eliminate
MR.
Majority also says firearms (generallytakes scope broadly) are not inherently
dangerous, so no need for SL/not allowed by 14ADP, because no inherent
warning.
Dissent Stevens says automatic weapon (dangerous) need SL (narrow scope).
There is a DP warning.
Garnett v. State statutory rape case
No MR in the statute and the silence was intentional SL even though Garnett has
reduced mental capacity
Dissent says too harsh a penalty for no MR requirement
Because this is not public-welfare typenot low fine

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And sex cant be inherently dangerous, such that notice is provided.


Also says purpose of the statute was not to convict garnettwas to discourage risky
behavior, and he did not knowlngly take a risk.
Doctrine:
MPC 2.05: calls practically all strict liability a violation
NY PENAL LAW 15.15 2: requires more than SL unless the statute is explicitly strict
liability
BUT SEE public welfare/regulatory offenses:
Where punishment is low/a thing needs to be regulated, can have SL
Probably the thing needs to also be inherently dangerous, such that person is put on
notice that it is dangerous (14A)
Guns not dangerous
Sex not dangerous
Hand grenades: dangerous.
An exception: statutory rape gets SL.

Mistake of Fact
D 194-198
Cases
People v. Navarro thought property was abandoned
One does not commit larceny by carrying away the chattel of another in the mistaken
belief that it is his own or is abandoned if the belief is genuine
Doctrine
Common Law (from Navarro citing Perkins)
In Specific Intent (purpose or knowledge) offenses, is not guilty if her good faith
mistake of fact negates the specific intent element of that offense.
Even an unreasonable mistake of fact may exculpate the actor if it negates the
MR.
Because an unreasonable belief would, at most, be negligence, and more is
required.
In General Intent (negligence sufficient) offenses, not guilty if her mistake of fact
was reasonable.
If negligence is sufficient, then an unreasonable belief might be negligent.
MPC
2.04(1): Ignorance or mistake as to a matter of fact or law is a defense if:
(a) the ignorance or mistake negatives the purpose, knowledge, belief,
recklessness or negligence required to establish a material element of the offense;
or
i.e. I didnt have the MR to steal your umbrella because I thought it was mine.
If the statute requires MR knowledge of the law, then you could get
something looking like mistake of law here.
(b) the law provides that the state of mind established by such ignorance or
mistake constitutes a defense.
i.e. the statute provides an explicit factual defense besides.
2.04(2) Mistake and Ignorance of law/fact: Although ignorance or mistake would
otherwise afford a defense to the offense charged, the defense is not available if the

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defendant would be guilty of another offense had the situation been as he


supposed. In such case, however, the ignorance or mistake of the defendant shall
reduce the grade and degree of the offense of which he may be convicted to those of
the offense of which he would be guilty had the situation been as he supposed.
NY PENAL LAW 15.15 1: A person is not relieved of criminal liability for conduct
because he engages in such conduct under a mistaken belief of fact, unless:
(a) Such factual mistake negatives the culpable mental state required for the
commission of an offense; or
(b) The statute defining the offense or a statute related thereto expressly provides
that such factual mistake constitutes a defense or exemption; or (
c) Such factual mistake is of a kind that supports a defense of justification as
defined in article thirty-five of this chapter.
Normative justifications:
Utilitarian:
If you dont know the fact making your action wrong, we cant deter you
Retributive:
If you do not have MR, you arent evil!

Mistake of Law
D 199-209; D 209-213; Supp 159-163
Cases
People v. Marrero NJ prison guard brings gun to NY
Ignorance of the law is no excuse
2 arguments:
I didnt know the lawtypical mistake of law argument that does not work
Simply misreading the law is not enoughsee the statutes below.
I had a good reason under NYPL 15.20 2 for not knowing the lawa mistake of
law argument that could work, but does not here.
He would have to be told by a judge or someone with authority the incorrect
lawsee below. Simply learning the law incorrectly from a class is not
enough.
And the lower court ruling in his favor does not work here, eithertheir being
overruled was not an afterward determination.
Cheek v. United States meaning of willfully in tax evasion case
The statutory term willfully as used in federal criminal tax statutes carve out an
exception.
Cheek must willfully evade taxes; belief wages not taxable income is relevant
Tax code MR includes knowledge of the law, so falls under mistake of fact
doctrine.
This does not mean you can argue mistake of law to the constitutionfalls under
typical mistake of law doctrine.
Andersen v. United States
SCOTUS says knowingly applies down the statute knowingly corruptly
persuade
Means knowing it is corrupt, not simply doing something
Doctrine:

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Common Law
Mistake of law is no excuse, exceptions:
Where knowledge of the law is an MR element of the crimesee mistake of
fact, above!
Entrapment by estoppel/reasonable reliance
A government official tells you the law incorrectly.
Fair notice excuse:
Lambert v. California: notice is required where penalty is imposed for
OMISSION (failing to do something).
Here, Lambert unaware of requirement to register, no notice.
MPC
2.04(3) Belief conduct not an offense: A belief that conduct does not legally
constitute an offense is a defense to a prosecution for that offense based upon such
conduct when:
(a) the statute or other enactment defining the offense is not known to the actor
and has not been published or otherwise reasonably made available prior to the
conduct alleged; or
(b) he acts in reasonable reliance upon an official statement of the law, afterward
determined to be invalid or erroneous, contained in (i) a statute or other
enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative
order or grant of permission; or (iv) an official interpretation of the public officer
or body charged by law with responsibility for the interpretation, administration
or enforcement of the law defining the offense.
DOES NOT INCLUDE POLICE in MPC.
Also, afterward determined does not mean that if you win at lower court, not
breaking law, then you are entitled to defense when a higher court overrules.
The higher court is not an afterward determination, but a statement of what
the law has always been. (MARERRO)
MPC 2.04(4): The defendant must prove a defense arising under Subsection (3) of
this Section by a preponderance of evidence.
NY PENAL LAW 15.15 2: 2. A person is not relieved of criminal liability for conduct
because he engages in such conduct under a mistaken belief that it does not, as a
matter of law, constitute an offense, unless such mistaken belief is founded upon an
official statement of the law contained in
(a) a statute or other enactment, or
(b) an administrative order or grant of permission, or
(c) a judicial decision of a state or federal court, or
(d) an interpretation of the statute or law relating to the offense, officially made or
issued by a public servant, agency or body legally charged or empowered with
the responsibility or privilege of administering, enforcing or interpreting such
statute or law.
Normative justifications:
Utilitarian:
From an ex ante deterrence standpoint, we want to encourage people to learn and
know the law. Otherwise, there would be plenty of cases where people could remain
strategically ignorant.

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Retributive:
Plenty of cases where mistake of law looks like bad morally, although not all.

IV. HOMICIDE: GRADING AND CAUSATION


Comparative Statutory Schemes
Homicide
Common Law divides into murder and Manslaughter
MPC 210.0(1)
The killing of a human being by another human being. (not suicide)
[MPC 210.0(1)]- a human is a person born alive
MPC divides into 3 offenses:
Murder: killing purposely, knowingly, recklessly, or negligently [MPC 210.1(1)]
Manslaughter- [MPC 210.3]
Negligent homicide
NY PENAL LAW 125.00: Homicide defined. Homicide means conduct which causes
the death of a person or an unborn child with which a female has been pregnant for more
than twenty-four weeks under circumstances constituting murder, manslaughter in the first
degree, manslaughter in the second degree, criminally negligent homicide, abortion
in the first degree or self-abortion in the first degree.

Intentional Killing (Murder)


D 253-264
Cases
State v. Guthrie (W.V.) towel slap, stabs victim
Reversed and remanded because of incorrect jury instruction because not informed of
distinction between first and second degree murder
First is premeditated and deliberate, as well as willful.
Second is just willful.
Midgett v. State child abuser kills his son; no 1st degree conviction2nd degree only.
The evidence showed he either intended not to kill the son but further abuse him or
that his intent was developed in a drunken, heated, rage.
Guilty only of 2nd degreenot premeditatedmurder.
State v. Forrest son shoots his infirm father so he wouldnt suffer1st degree.
Defendant said he thought about putting his father out of his misery because he knew
he was suffering.
Conviction of 1st degree murder affirmed.
Doctrine
Degree-divided systems:
As a preliminary point, none of common law, the MPC, or New York Penal Law
are divided into this kind of system
Common law murder is killing with malice aforethought, which includes
both straight up intent and premeditation.
MPC murder is all intentional or knowing homicide

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New York has a degree system, but 2nd degree is all intent killings; 1st degree
is reserved for elevating circumstances OTHER than premeditation, such as
terrorism, things like that.
One of the elevating circumstances is an underlying felony! Intentional
killing plus underlying felony!!!
Willful, Deliberate, Premeditated Formula (1st degree)
When murder is divided into degrees, willful deliberate or premeditated murder is
considered first degree murder
Willful- intentional
Premeditated- think about beforehand.
Deliberate- cool and calm thinking. Deliberation requires premeditation.
Different ways of defining premeditate
Michigan: enough time for a reasonable man to be able to subject the nature of
his response to a second look. People v. Morrin
North Carolina: circumstances to consider in determining whether a killing
was with premeditation: (1) want of provocation from deceased; (2) the
conduct and statements of the defendant before and after the killing; (3)
threats and declarations of the defendant before and during the course of the
occurrence giving rise to the death of the deceased; (4) ill-will or previous
difficulty between the parties; (5) the dealing of lethal blows after the
deceased has been felled and rendered helpless; and (6) evidence that the
killing was done in a brutal manner. State v. Forrest
Nature and number of victims wounds is a circumstance from which
premeditation and deliberation can be inferred. (CA Supreme Court says
oppositenumber of wounds shows lack of premediation and
deliberation)
West Virginia: Any interval of time between the forming of the intent to kill
and the execution of that intent, which is of sufficient duration for the accused
to be fully conscious of what he intended, is sufficient to support a conviction
for first degree murder. State v. Guthrie
Mere intentional killing (2nd degree)
When murder is divided into degrees, merely intentional killing is second
Common Law
Killing of a human being with malice aforethought
Note: No 1st/2nd degree murder in the common lawall malice killings
treated the same!
MPC does not divide murder into degrees either see above)
Nor does New York Penal Law (see above)
Malice
A person acts with malice if she unjustifiably, inexcusably, and in the absence of
any mitigating circumstances kills a person with
The intention to kill a human being
The intent to inflict grievous bodily injury on another,
An extremely reckless disregard for the value of human life (depraved heart)

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Intention to commit a felony and during the course of the commission or attempt
an accidental death occurs
Note: Malice abandoned in MPC, in favor of a specific, tiered intent
requirement.
And in NY Penal Lawsimilar.
At common law, intent to kill could be inferred from certain evidence.
Natural and Probable Consequences Doctrine
Intent to kill can be inferred if death is the natural and probable consequence
of s voluntary act
Ex- aims loaded gun at Vs head and shoots. Since death is the natural
and probable consequence of pulling the trigger, intent to cause the death
is inferred
This is just an inferential, evidentiary move to intenta move a jury might
make. THUS, the COMMON LAW STANDARD STILL HOLDS.
MPC 210.2(1)(a) - criminal homicide constitutes murder when it is committed purposely
or knowingly
NY PENAL LAW 125.25: Murder in the second degree. A person is guilty of murder
in the second degree when:
1. With intent to cause the death of another person, he causes the death of such
person or of a third person;
Normative justificationswhy does dividing murder into degrees not make sense?
Utilitarian:
At first blush, it seems coherent, ex ante, to divide murder into those that are premeditated and spur-of-the-momentthe premeditating killer is, in the abstract,
more deterrable.
However, at the factual level, this may not flesh out: Forrest seems far less
deterrable than Midgett, despite the
Thus, there can be significant fact-individual, ex post problems with applying this
doctrine.
Retributive:
It might also seem coherent from a retributive standpoint to blame those who
premeditate generally more than those who dont.
But, again, in certain fact-specific circumstances, this falls apart.
Maybe the intuition roughly approximated here is really callousness towards the
risksee depraved indifference, below.

Heat of Passion Manslaughter


D 264-275; D 275-292
Cases
Girouard v. State (MD) military abusive relationship
Words alone are never adequate provocation (bright line test, but is that a good idea?)
Justification facts: victim provocation
Excuse facts: Ds psychological issues.
Attorney General for Jersey v. Holley trying to use alcoholism and victims provocation
The jury should decide whether the provocation was enough to make a reasonable
man do as the defendant did

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Subjective standards:
Did the D subjectively lose control?
Yesall contextual evidence admissible
What was the subjective gravity of the provocation from the Ds perspective?
High gravityany contextual evidence showing a characteristic of the D
that would make him sensitive to the specific type of provocation.
Probably can have evidence that he was an alcoholic and the guy
called him a drunken bum.
Probably cannot have evidence that he was an alcoholic, so when the
dude called him a big nerd he just totally lost it and fucked him up
because he was shwasty.
Because that isnt relevant to the specific type of provocation. It
just shows the D had poor self-control generally.
Objective standard:
Was the subjective gravity, when measured independent of context, sufficient
to have caused an objective reasonable person to lose control?
Possiblysome contextual evidence can come in, but probably only sex
and age to specify some minimal chartacteristics about the reasonable
person.
People v. Casassa (NY applying MPC) victim rejected defendants advances, he stalks
and kills
Determination of reasonable explanation or excuse for a particular disturbance
should be made by viewing the subjective, internal situation in which the
defendant found himself and the external circumstances as he perceived them at
the time, however inaccurate that perception may have been, and assessing from that
standpoint whether the explanation or excuse for his emotional disturbance was
reasonable.
Looking at whether the emotional disturbance is reasonable, not whether the act of
killing is reasonable
Hyper-contextual hypothetically objective, but semi-subjective, reasonability test.
Doctrine
Common Law
Homicide that occurs when the actor takes a life in sudden heat of passion as the
result of adequate provocation.
Adequate provocation: focus is on the ACTIONS OF THE V (justificationoriented) must be such that it might inflame the passion of a reasonable man and
tend to cause him to act for the moment from passion rather than reason.
(Girouard v. State)
Words alone not adequate provocation
Historically, only a few types of provocation recognized:
Serious battery
Mutual combat
Husband seeing wife in adultery
Because a small set of recognized types of heat of passion, judge-administered
bright-line rule test. There was only minimal application of a standard for

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adequate provocationmust of it was fact-based, concentrating on the rules.


If the facts were there about provocation, you had a defense.
Maryland rule: There must have been adequate provocation; killing must have
been in the heat of passion; it must have been a sudden heat of passion; there
must have been a causal connection between provocation, the passion, and the
fatal act
Dressler: the provocation must be so serious that we are prepared to say that
an ordinary person in the actors circumstances, even an ordinarily lawabiding person of reasonable temperament, might become sufficiently upset
by the provocation [and suffer such an emotional outburst as] to experience
substantial impairment of his capacity for self control and, as a consequence,
act violently
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 reasonable explanation or excuse.
The reasonableness of such explanation or excuse shall be determined from the
viewpoint of a person in the actor's situation under the circumstances, as he
believes them to be.
NY PENAL LAW 125.25:
that in any prosecution [for murder in 1st, aggravated, or 2nd degree] it is an
affirmative defense [mitigating to one of the various types of manslaughter] that:
(a) The defendant acted under the influence of extreme emotional disturbance
for which there was a reasonable explanation or excuse, the reasonableness of
which is to be determined from the viewpoint of a person in the defendant's
situation under the circumstances as the defendant believed them to be. Nothing
contained in this paragraph shall constitute a defense to a prosecution for, or
preclude a conviction of, manslaughter in the first degree or any other crime; or
Both the MPC and New York focus on EXCUSE, rather than on provocation.
Both the MPC and New York tests are hyper-contextual hypothetically objective but
semi-subjective reasonability STANDARD for EED:
Holley to Casassa shows a transition from a less contextual, more objective standard,
to a more contextual, less objective standard:
from trying to administer a more objective reasonable-person standard with
limited introduction of contextual evidence (limited to only the information
relevant to the type of offense at the measurement stagestage 2, and limited to
even less information)
to the full-on administration of a much more contextual reasonability standard.
What context would not be permissible as evidence under these reasonability tests?
Age would be
Gender would be
Cultural/social norms?
Tribal norms? mans talk
Jordanian man who kills spouse for refusing to live with children in Jordan.
Ds background/sensitivities?
Household sexual abuse

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Homophobia
Short temper.
Some of these might come out of the MPC/NY test because they would be deemed
moral values rather than emotional disturbances.
But ultimately, this is left up to the jury.
But MPC and NY ultimately leave this up to the jury, and ultimately look like tests of
jury sympathy.
VERY LITTLE will be barred at the door by the judge! Most will go to the
jury.
Normative justifications and transitions:
Dressler: a partial justification because the unlawfulness of the provocation which makes
the response less socially undesirable
Now, primarily an excuse doctrine.
The reason for this transition:
Curtailing the amount of justification we provide for homicidewe do not believe we
can justify all homicides which the victim deserved.
Thus, we have evolved from:
Justification
Victim-behavior focus
Bright-line provocation rule
Judge-administered.
To:
Excuse
Defendant-state-of-mind focus
Flexible excuse standard
Hypothetically objective, but semi-subjective
Jury-applied; little barred at the door.

Reckless Homicide
D 295-304; D 304-315; Supp 164-167
Cases
People v. Knoeller (CA) lawyers dog kill woman, charged w/ 2d degree murder
Implied malice when the circumstances attending the killing show an abandoned and
malignant heart
Applies Phillips Test from (CA) Malice implied (sufficient for murder) when the
killing is proximately caused by an act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows that
his conduct endangers the life of another and who acts with conscious disregard
for life
Buell thinks, in order to keep this from bootstrapping all reckless homicide up to
murder, you need an additional factore: callousness towards the risk as implied by
continuing to do an activity of low social utility.
Requires:
a defendants awareness of the risk of death (explicit)
and a conscious disregard for human life (explicit)

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Plus an implied factor: the D must have had a callous attitude towards the
risk:
Performing an activity of low social utility/taking the risk when its not
worth it!
DEPRAVED INDIFFERENCE (R+) DOCTRINE:
MPC
210.2(3)(1)(b) - criminal homicide constitutes murder when: it is committed
recklessly under circumstances manifesting extreme indifference to the value of
human life. Such recklessness and indifference are presumed if the actor is engaged
or is an accomplice in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery, rape or deviate sexual intercourse by
force or threat of force, arson, burglary, kidnapping, or felonious escape.
Remember, recklessness =
consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct.
disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actor's situation.
Looser than NY: requires only recklessness towards some substantial and
unjustifiable risk, whereas NY requires recklessness towards a grave, substantial, and
unjustifiable risk.
NY PENAL LAW
125.25: Murder in the second degree. A person is guilty of murder in the second
degree when: 2. Under circumstances evincing a depraved indifference to human
life, he recklessly engages in conduct which creates a grave risk of death to
another person, and thereby causes the death of another person
Remember, recklessness =
consciously disregards a substantial and unjustifiable risk that such result
will occur or that such circumstance exists.
disregard thereof constitutes a gross deviation from the standard of conduct
that a reasonable person would observe in the situation.
More stringent that MPC: NY requires recklessness towards a grave, substantial,
and unjustifiable risk, whereas MPC requires only recklessness towards some
substantial and unjustifiable risk, whereas
for both NY and MPC, need:
ACTUAL (subjective) awareness of risk
Risk is as to relevant element
Risk is substantial/unjustifiable (and, in NY, grave)
Degree/level of risk.
disregard is gross deviation
callous attitude towards risk:
activity of low social utility
and should also consider:
justification for risk
specificity with which risk is contemplated
REGULAR RECKLESSNESS (R) DOCTRINE:

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MPC 210.3(3)(1)(b) Criminal homicide constitutes manslaughter when it is


committed recklessly
NY PENAL LAW 125.15: Manslaughter in the second degree. A person is guilty
of manslaughter in the second degree when: 1. He recklessly causes the death of
another person
for both NY and MPC, need:
ACTUAL (subjective) awareness of risk
Risk is as to relevant element
Risk is substantial/unjustifiable
Degree/level of risk.
disregard is gross deviation
should also consider:
justification for risk
specificity with which risk is contemplated

Negligent Homicide
Cases
State v. Hernandez (MO) drunk driver, charged with involuntary (negligent)
manslaughter
Defendants knowledge of the risks associated with alcohol was not an issue or part
of what the government had to prove, and therefore evidence of knowledge of risk
is irrelevant to question of negligence.
Defendants lack of awareness of the risk to others from his conduct is what matters
Therefore,
State v. Williams (WA) parents don take child to the doctor
The standard for negligence in this case is ORDINARY negligence, rather than gross
negligence, as it would be under the MPC or NY.
This case might still come out the same way even under the gross negligence
standard, depending on how subjective we can make the objective
Carosi v. Commonwealth (VA) child endangerment b/c drugs in house
Jury could have found defendant had awareness of the drugs to convict
endangerment, but not requisite control to have possession
D argues that negligence towards this risk is no different than kitchen knives; court
appears to resolve on grounds of either:
Reasonable person would have kitchen knife or
callous attitude towards risk/low social utility.
Doctrine
MPC 210.4(1) Criminal homicide constitutes negligent homicide when it is
committed negligently
Remember, negligence =
should be [but is not] aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct.
The risk must be of such a nature and degree that the actor's failure to perceive it,
considering the nature and purpose of his conduct and the circumstances known to
him, involves a gross deviation from the standard of care that a reasonable
person would observe

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NY PENAL LAW 125.10 Criminally negligent homicide. A person is guilty of


criminally negligent homicide when, with criminal negligence, he causes the death of
another person.
Remember, negligence =
fails to perceive a substantial and unjustifiable risk that such result will occur or
that such circumstance exists.
The risk must be of such nature and degree that the failure to perceive it
constitutes a gross deviation from the standard of care that a reasonable
person would observe in the situation.
For both NY and MPC, need:
Failure to perceive a risk
Risk is as to relevant element
Risk is substantial/unjustifiable
Degree/level of risk.
Failure to perceive grossly deviates from what a reasonable person would perceive.
Objective test
Can we semi-subjectivize it (contexualize it) like we to the HoP/EED test?
should also consider:
justification for risk
specificity with which risk is contemplated

Felony Murder
D 315-326; D 334-345
Cases
People v. Fuller tire stealing, someone dies
California imposes strict liability for deaths committed in the course of one of the
enumerated felonies, whether the killing was caused intentionally, negligently, or
merely accidentally
Because they entered a vehicle with locked doors, committed burglary FM.
If the vehicle had not been locked, no FM here.
Is that a coherent distinction?
People v. Howard fleeing from the cops is not an inherently dangerous felony in the
abstract
People v. Smith Merger doctrine
Felony murder rule is inapplicable to felonies that are an integral part of and included
in fact within the homicide.
May nevertheless apply if the underlying offense was committed with an independent
felonious purpose
Because purpose is to deter the death; not the underlying felony
State v. Sophophone causation limitation
The act of the non-felon (police officer) shooting the co-felon does not trigger felony
murder
Doctrine
Common Law
If someone dies in the course of commission of a felony, then guilty of felony murder

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Most courts hold that doctrine still applies even after a felony is technically
completed
Common Limitations on the FM doctrine:
1 Inherently dangerous felony limitation:
In jurisdictions where there is no statutorily enumerated list of felonies
eligible for FM, the underlying felony must be inherently dangerous in the
abstract. (danger in-fact would be a circular test.)
2 Merger Doctrine limitation:
FM rule only applies to underlying felonies with
Independent felonious purpose
That are not an integral part of and included in fact in the death
Ex: no felony murder for assault w/ deadly weapon; burglary where
not a felony but for the intent to commit assault
3 whether the rule should apply when the fatal act is performed by another
Majority rule (agency approach): no FM for A if the person who directly
causes the death is a non-felon/accomplice, or not otherwise under the
control/agency of A.
Alternative view 1 (agency/justification approach): no FM for A if the person
who directly caused the death was justified in doing so as a law enforcement
officer, or for another reason.
Alternative view 2 (proximate causation): a felon may be responsible if the
felon set in motion the acts which resulted in the victims death.
foreseeability is relevant here.
MPC 210.2(1)(b) - . . . recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an attempt to commit, or flight after
committing or attempting to commit robbery, rape or deviate sexual intercourse by force
or threat of force, arson, burglary, kidnaping or felonious escape.
Places FM as a presumption within R+, which is rebuttable
Effect on the FM limitations:
1 Inherently dangerous felony: Enumerated list, so inherently dangerous felony
rule does not apply to affect presumption
2 Merger doctrine: Also appears that the list (not including battery, assault) takes
care of some of the merger doctrine, but probably not all
3 Act by another:
A probably gets an automatic R+ presumption if A is an accomplice of
another(B) in one of the enumerated crimes, and another(B) causes a death.
the presumption appears limited to accomplices.
Rationale: As accomplice to B functions as callousness.
But A could hypothetically still be liable under R+ for the death caused by B,
to whom A was an accomplice in the underlying crime, depending on the
specific facts. Just noautomatic presumption.
NY PENAL LAW 125.25 Murder in the Second Degree: A person is guilty of murder
in the second degree when: 3. Acting either alone or with one or more other persons, he
commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the
first degree, criminal sexual act in the first degree, sexual abuse in the first
degree, aggravated sexual abuse, escape in the first degree, or escape in the second

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degree, and, in the course of and in furtherance of such crime or of immediate flight
therefrom, he, or another participant, if there be any, causes the death of a person
other than one of the participants;
except that in any prosecution under this subdivision, in which the defendant was
not the only participant in the underlying crime, it is an affirmative defense that the
defendant:
(a) Did not commit the homicidal act or in any way solicit, request, command,
importune, cause or aid the commission thereof; and
(b) Was not armed with a deadly weapon, or any instrument, article or substance
readily capable of causing death or serious physical injury and of a sort not
ordinarily carried in public places by law-abiding persons; and
(c) Had no reasonable ground to believe that any other participant was armed with
such a weapon, instrument, article or substance; and
(d) Had no reasonable ground to believe that any other participant intended to
engage in conduct likely to result in death or serious physical injury.
Effect on the FM limitations:
1 Inherently dangerous felony: Enumerated list of felonies, so inherently dangerous
fenony rule does not apply
2 Merger doctrine: Also appears that the list (not including battery, assault) takes
care of some of the merger doctrine, but probably not all
3 Act by another:
Appears that A will be liable for any death caused by a co-participant
not clear whether this can include intervening third parties, such as police,
but probably not, based on causation.
However, A has a complex defense under the multi-part test, which seems to go to
whether the death was foreseeable from his vantage. Foreseeability limitation.
NY PENAL LAW 125.27 125.27 Murder in the first degree. A person is guilty of
murder in the first degree when: 1. With intent to cause the death of another
person, he causes the death of such person or of a third person; and (a) Either:
(vii) the victim was killed while the defendant was in the course of committing or
attempting to commit and in furtherance of robbery, burglary in the first degree
or second degree, kidnapping in the first degree, arson in the first degree or
second degree, rape in the first degree, criminal sexual act in the first degree,
sexual abuse in the first degree, aggravated sexual abuse in the first degree or
escape in the first degree, or in the course of and furtherance of immediate flight
after committing or attempting to commit any such crime or in the course of and
furtherance of immediate flight after attempting to commit the crime of murder in the
second degree; provided however, the victim is not a participant in one of the
aforementioned crimes and, provided further that, unless the defendant's criminal
liability under this subparagraph is based upon the defendant having commanded
another person to cause the death of the victim or intended victim pursuant to section
20.00 of this chapter, this subparagraph shall not apply where the defendant's
criminal liability is based
Normative Justifications:
Deterrence:

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Felony murder is intended to deter negligent and accidental killings during the
commission of felonies, probably not to deter the underlying felony (People v.
Smithhence the merger doctrine)
Flawed and unproven, how does one deter an unintended act?
Retributivism
One who does bad acts cannot complain about being punished for their consequences,
no matter how unexpected
primitive
An intentionally committed robbery that causes the death of a human being is
qualitatively more serious than an identical robbery that does not
Flaws
Intent to burglarize cannot be equated with malice aforethought required for murder
Do we even need felony murder?
Taylor v. Superior Court Court says As chattering insanely in the store was extremely
reckless and proximately cause the initiation of the gunfire by the store owner, convicted
without felony murder. Used reckless murder
Misdemeanor-Manslaughter (MM, the younger sibling of FM)
MPC and some states have completely abolished
Some states limit application to malum in se (wrong in itself) misdemeanors or dangerous
misdemeanors

V. RAPE AND SEXUAL ASSAULT


D 387-447
Cases:
State v. Alston:
Rape in North Carolina defined as vaginal intercourse with the victim both by force
and against the victims willconsent by the victim is a complete defense, but
consent which is induced by fear of violence is void and is no legal consent.
Thus, Pros./V must effectively prove:
Force or threat of force:
Force: (indicated by unofficial resistance element).
Threat of Force: reasonable inference of the threat sufficient to overcome
resistance capacity.
and must stop the D from proving that effective consentwhatever should have
been apparent to the D (this is actually a defense, so the V must stop the D from
proving).
Evidentiary case: how wide is the lens? How much evidence of prior relations should
we let in?
Problem: the force/threat of force (resistance/reasonable fear precluding resistance)
requirement under-includes this case, where an ongoingly violent and coercive
relationship does not constitute rape because, even though there was a clear
manifestation of non-consent, there was also no evidence that there was force, as
would be shown by resistance, or threat of force, as would be shown by
circumstances creating reasonable fear that V should not resist.
Rusk v. State:

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A person is guilty of Rape in Maryland when the person engages in vaginal


intercourse with another person by force or threat of force against the wil and
without the consent of the other person.
Force or threat of force
Force: shown with resistance.
Threat of force: show by reasonable fear indicating an inability to resist
Plus lack of consent.
TC finds no threat of force from key-danger; dissent disagrees, and the AC also
disagrees.
Commonwealth v. Berkowitz:
In Pennsylvania, for first-degree rape, need:
Force
Either mental coercion (power-play by boss)
Or actual force
Officially, no resistance requirement
But the court basically reads one in, says that the requirement is more than
just force plus lack of consent or verbal resistanceneed more than
verbal resistance, and the crime is not a mere lack of consent.
Threat of force that would prevent resistance by a reasonable person.
(consent not in the statute; not discussed)
After this case, the legislature passed a statute making non-consensual sex criminal.
State of New Jersey In The Interest of M.T.S.
New Jersey: person who commits an act of sexual penetration using physical
force or coercion is guilty of second-degree sexual assault.
Court basically reads out the force/resistance requirement from the statute, says
that any penetration is sufficient
And the focus is on reasonable manifestations of consentwould a reasonable
person have believed that the alleged victim had affirmatively and freely given
authorization to the act?
Doctrine:
Common Law:
Rape required either:
Force threat of force:
To show force, had to show resistance
To show threat of force, had to show that the will to resist was overcome by a
reasonable fear.
Plus lack of consent that had to be reasonably apparent to the D
Back-doors in second half of an MRnegligence or above as to the lack of
consent.
These dual requirements built an implicit MR for the D:
Must be the case that he should have known force/threat of force:
that he was using force (based on her resistance)
that his actions could cause fear of force (based on her reasonable fear of
resistance)

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And that he should have known that he did not have consent (based on reasonable
manifestations of consent.)
New Jersey Reform (transition from force/threat + consent to just consent):
Eliminates by judicial fiat at least the force requirement, would probably do the same
thing with threat of forceonly need the force of sex itself.
Consent is the relevant test: were there reasonable grounds from which the D should
have concluded consent, or no?
Back-doored MR of negligence as to the lack of consent.
Thus, even if the resistance-dependent force test is gone, resistance is still the easiest
way to show non-consent!
UCMJ Art. 120
Aggrevated sexual assault = (broader than in actual rape) constructive force (just
some constructive forcenot as much); or bodily harm (= any offensive touching,
however, slight, including any nonconsensual sexual act or nonconsensual sexual
contact); or V is impaired; or V is asleep
Is the second option SL as to the consent? Seems like it might be.
CONSERVATIVE: MPC 213.1. Rape and Related Offenses.
(1) Rape. A male who has sexual intercourse with a female not his wife is guilty of
rape if:
(a) he compels her to submit by force or by threat of imminent death, serious
bodily injury, extreme pain or kidnaping, to be inflicted on anyone; or
(b) 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
(c) the female is unconscious; or
(d) the female is less than 10 years old.
Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts
serious bodily injury upon anyone, or (ii) the victim was not a voluntary social
companion of the actor upon the occasion of the crime and had not previously
permitted him sexual liberties, in which cases the offense is a felony of the first
degree.
(2) Gross Sexual Imposition. A male who has sexual intercourse with a female not his
wife commits a felony of the third degree if:
(a) he compels her to submit by any threat that would prevent resistance by a
woman of ordinary resolution; or
(b) he knows that she suffers from a mental disease or defect which renders her
incapable of appraising the nature of her conduct; or
(c) he knows that she is unaware that a sexual act is being committed upon her or
that she submits because she mistakenly supposes that he is her husband.
MORE LIBERAL NY PENAL LAW 130.25 Rape in the third degree. A person is
guilty of rape in the third degree when:
1. He or she engages in sexual intercourse with another person who is incapable of
consent by reason of some factor other than being less than seventeen years old;
2. Being twenty-one years old or more, he or she engages in sexual intercourse with
another person less than seventeen years old; or

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3. He or she engages in sexual intercourse with another person without such


person's consent where such lack of consent is by reason of some factor other
than incapacity to consent. Rape in the third degree is a class E felony.
Doctrinal issues:
With the reform approach, what is consent?
From a constitutive standpoint?
What is it, formally?
From an evidentiary standpoint?
What evidence shows it?

VI. ATTEMPT
Basic Attempt Doctrine
D 729-745; D 745-755; D 765-771
Cases
People v. Gentry Gentry pours gas on girlfriend, ignites when she goes to stove.
Attempted murder?
A finding of specific intent (in this case, just purpose!) to kill is a necessary element
of the crime of attempted murder
Bruce v. State attempted felony murder?
Criminal attempt is specific intent crime (in this case, just purpose!), felony murder
requires no intent at all as to the result, therefore cannot have attempted felony
murder
United States v. Mandujano
Preparation alone is not enough, the must be some appreciable fragment of the
crime committed, it must be such progress that it will be cnsummated unless
interrupted by circumstances independent of the will of the attempter, and the act
must not be equivocal in nature
People v. Rizzo never found guy trying to rob
No dangerous proximity because never found the person they were looking for no
liability
Commonwealth v. Peaslee: Incomplete arson attempt
No present intent to set fire, he couldnt do it and therefore not close enough to hold
liable
United States v. Alkhabaz Umich chat room case
18 USC 875(c) interpreted to mean a reasonable person would (1) take statement as
a serious expression of an intention to inflict bodily harm and (2) would perceive such
expression as being communicated to effect some change or achieve some goal
through intimidation
Here, no reasonable person would perceive the communications between
Alkhabaz and the other to effect some change or achieve some goal through
intimidation
Doctrine
Common Law
Actus Reus Options

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Last Act Test: Criminal attempt only occurred when a person performed all the
acts necessary to commit the target offense
Very strict
Hard for police to prevent if they have to wait until the very last minute
Dangerous proximity test: So near to the result that the danger of success is very
great (Rizzo)
Ex- pull the trigger, but gun doesnt go off
Courts consider
Nearness of the danger
Substantiality of the harm
Degree of apprehension felt
Physical Proximity Test- must go so far that it would result, or apparently result in
the actual commission of the crime it was designed to effect, if hindered by
external circumstances
Direct movement to the commission of the offense, post preparation
Unequivocality/ Res Ipsa: not guilty until her behavior is unequivocal- conduct
demonstrates criminal intent.
Probable Desistance Test- point past which no ordinary person is likely to
abandon her criminal endeavor
Mens Rea
Dual intents: Acts/conduct must be intentional AND must have the specific intent
(purpose or maybebut, in the common law cases, looks like notknowledge)
to commit the target offense (that is, to cause the result or to do the conduct.)
This is a higher level of mens rea, no negligence or recklessness as to the
target offense.
Attendant Circumstances: At common law, unclear what MR, if any, an actor must
have regarding an AC?
Some states hold that merely being reckless with regard to an AC can be an
attempt
Others say you need the same mental state required for the target offense
MPC 5.01: Guilty of attempt if, acting with the kind of culpability otherwise required for
commission of crime he:
Need culpability for the underlying crime
(a) completed attempt involving conduct (driving under the influence)
purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be
plus a minimum of purpose to engage in the conduct if a conduct crime.
(b) completed attempt involving results (murder)
Does or omits to do anything with the purpose of causing or with the belief it will
cause the result without further conduct on his part
Plus a minimum of purpose or knowledge towards the result if a result crime.
(c) incomplete attempt
purposely does or omits to do anything which, under the circumstances as he believes
them to be, is an act or omission constituting a substantial step in a course of conduct
planned to culminate in his commission of the crime

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5.01(2) elaborates the meaning of substantial step


Whether it is a substantial step is a jury issue, keeping 5.01(2) in mind.
Substantial step is a loose test!
If prosecutor proves any of the situations in (2) has occurred, trial judge must
instruct jury pursuant to (1)(c).
Need purpose or, at minimum, knowledge, plus the otherwise required MR for the
offense. See 5.01(a), (b).
MPC comment to 5.01: The D needs a MR otherwise required as to the commission of
the crime itselfthe conduct necessary for the conduct (if a conduct crime) or for the
result (if a result crime)but generally not as to attendant circumstances, because they
have to MR in the crime itself! (If they did have an MR, they would be necessary.)
Thus, under MPC, attempt applies only to purpose crimes or, with result crimes,
knowledge crimes.
Renunciation of Criminal Attempt under [MPC 5.01(4)] recognizes defense of
renunciation of criminal attempt
she abandons her effort to commit the crime or prevents it from being committed
her conduct manifests a complete and voluntary renunciation of her criminal purpose
NY PENAL LAW
110.00 Attempt to commit a crime. A person is guilty of an attempt to commit a
crime when, with intent to commit a crime, he engages in conduct which tends to
effect the commission of such crime.
MR: Specific intent (purpose) as to the crime (whether conduct or resultlooks like
the same dividing line as the MPC?)
AR: engages in conduct which tends to effect (this reads very loosely).
Federal court:
The AR test is somewhere between substantial step (MPC, loose), and dangerous
proximity.
other deterrence modelsspecific statutes. Contaminating the doctrine generally with loose
attempt vs harming sepcifci individuals.
Normative Justifications:
Could we use specific statutes to do this?
Would allay our fears about crime preparation. Would be able to punish preparers
more easily.
And we would not have to dilute the intent doctrine with going farther and farther in
front of the crime. Would benefit the general interests of Ds.
On the other hand, might be a violation of the rights of Ds of specific crimes.
MPC comment to 5.01:
Specifically deterring criminals is a minor function, as is general deterrence:
Barrett Robbins: would-be felony murderer not going to be deterred by threat of
sanction for attempted FM if willing to risk the penalty for the felonious burglary.
Since he is merely taking a risk while doing something else without purpose to
kill, he cant be deterred in the same way.
But someone who has the purpose to cause the result of the crime attempted can
be deterred from committing the crime.
And the same applies broadly, in the general social setting.

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The bigger object of attempt liability, though, is the prevention of crimes that have
not culminated yetattempt moves back temporally to a moment where the actor has
manifested sufficient purpose to commit the crime that we think they are culpable and
that we think it would benefit society to punish them.
Retributivist view:
Purpose-based: Culpability shouldnt change just because the actor failed to
commit a crime he had full purpose to commit.
Harm based: preliminary act/intent causes apprehension (harm) in others gives
rise to need for justification.
But this seems disingenuouswe dont really think that retribution is at the
heart of this.
Consequentialist view/Utilitarian:
evidence of dangerous disposition, supplies a good reason for intervening
prevention of the crime.
preventing

Impossibility
D 772-786
Cases
People v. Thousand attempted statutory rape to an undercover cop
The attempt statute carves no exception for those who act with criminal intent to
commit an offense prohibited by law act under an extrinsic misconception
Principles
Factual impossibility (NOT A DEFENSE): the defendants intended end constitutes a
crime, but she fells to consummate it because of a factual circumstance unknown to her
or beyond her control
Ex: pointing an unloaded gun and pulling the trigger when you believe it is loaded
Pure legal impossibility (DEFENSE): the criminal law does not prohibit Ds conduct or
the result she sought to achieve
Need an existing crime to be liable for attemp
Ex: A man thinks the age of consent is 16, has sex with a 15 year old, the age of
consent is actually 15.
Hybrid legal impossibility (NOT A DEFENSE): Ds goal was illegal, but commission of
the offense was impossible due to a factual mistake made by her regarding the legal
status of some factor relevant to her conduct.
Ex: attempting to murder a corpse.
MPC commentary 5.01:
Rejects the hybrid impossibility and factual impossibility distinction, treats them both the
same.
Preserves pure legal impossibilityit is, of course necessary that the result desired or
intended by the actor constitute a crime. If, according to his beliefs as to relevant facts
and legal relationships, the result desired or intended is not a crime, the actor will not be
guilty of an attempt even though he firmly believes that his goal is criminal.
NY PENAL LAW 110.10 Attempt to commit a crime; no defense. If the conduct in
which a person engages otherwise constitutes an attempt to commit a crime pursuant to
section 110.00, it is no defense to a prosecution for such attempt that the crime charged

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to have been attempted was, under the attendant circumstances, factually or legally
impossible of commission, if such crime could have been committed had the attendant
circumstances been as such person believed them to be.
AJ: looks like this is saying that factual/legal impossibility doesnt do anything except
when its pureif the ACs had been true, it would have been purely illegal. This is a
weird statute!
Normative Justifications:
The pure legal impossibility vs. hybrid/factual line is more coherent than it seems:
Dates and status relationships make the problem much harderbut usually, the
border is not so fine:
Dates:
Mr. factit is a crime to K hunt out of season, season by law starts 10/15, he
hunts on 10/15, thinking that the factutal date is 10/14. GUILTY because he
believes he is guilty due to a mistaken belief about the factual date.
Mr. lawit is a crime to K hunt out of season, season by law starts 10/15, he
hunts on 10/15, thinking that the date by law of the season starting is 10/16.
INNOCENT because he believes he is guilty due to a mistaken belief about
the starting date by law.
In this scenario, culpability looks similar, because the only real difference is
that in one, the relevant date is a fact, whereas in the other, the relevant date is
contained in the itself.
Lady Eldons lace:
Fact: crime to K smuggle French lace, smuggles English lace, thinking that it
is factually French. GUILTY.
Law: crime to K smuggle French lace, smuggles English lace, thinking that it
is a crime to smuggle English lace. INNOCENT.
In both these cases, the line between fact/law is close, because the law contains the
same information as the D is wrong on the facts aboutdates, especially. The only
difference between the dates hypos is that in the first he thinks the day is the wrong
date, whereas in the second he thinks the law contains a different date. In this case,
the distinction looks highly formal.
But in the real world, the legal/factual distinction does real work and is not as
artificial as it looks.
Firstly, Things that are legally possible are just not illegal, even if the actor
believes them to be as a matter of law. By contrast, things that are factually
impossible would be illegal if the facts were in accord with what the actor
believed them to be. This is significant, because if we criminalize things that
are just not illegal, we create a notice/due process problemhow will people
know when they will and will not be prosecuted?
Secondly, usually, people dont make legal impossibility errors as simple as
datesusually something like I thought it was a crime to sell cigarettes to a 20year-old and that person would just not be doing something illegal. (As opposed
to, I knew the law was 18, and I thought the person was 17that would be easy
attempt on factual impossibility.) This demonstrates that, in practice, the
distinction is more coherent than the borderline case makes it look.

38

Criminal Law Spring 2012

Attempt =
(failure to do underlying crime) A tries to kill B, fails
(factual impossibility of underlying crime) = A tries to kill B, but B is elsewhere.
Attempt to conspire = (failure to conspire) A asks B, B says no. this is an attempt, because
its not even a unilateral conspiracyA doesnt think there is a conspiracy, but he tried to get
one.
Conspire =
(factual impossibility of conspiracy) A asks B, B says yes, but means no. not strict FI
because of the idea of unilateral conspiracy.
(factual impossibility to do the underlying crime) no bar on conspiracyirrelelvant.
(success) A asks B, B says yes, means yes.

VII. Conspiracy: Theory and Mental State


D 797-816
Need purpose as to the result
Cases
People v. Carter background case
Conspiracy defined as a mutual agreement or understanding, between two or more
persons to commit a criminal act or accomplish a legal act by unlawful means
Requires intent to combine with others and intent to accomplish the illegal
objective
Pinkerton v. United States
A defendant can be held for the completed substantive crimes of his co-conspirators
People v. Swain conspiracy to commit murder in the 2d degree for drive-by
Where mens rea could have been based on either express malice (intent to kill) or
implied malice (intent to do some act, the natural consequences of which are
dangerous to human life) cannot have conspiracy to commit murder because not sure
if there was intent to kill or not. Killing wasnt the target offense.
Cannot intend a reckless murder.
People v. Lauria answering machine service used for prostitution
Laurias knowledge of the criminal activity was insufficient to find that he intended
to further their criminal activities, and thus insufficient proof of his participation in a
criminal conspiracy.
Doctrine
Common law
MR:
Intent (purpose) to agree
The intended agreement need only be a meeting of the mindsnot a
partnership, and it need not be express.
Plus intent (purpose) to commit the offense which is the object of the conspiracy.
Which means at least purpose to achieve the result or to engage in the
conduct.
As to attendant circumstances: some circuits say no conspiracy unless
knowledge of attendant circumstances even if no knowledge required for the
underlying crime. Others say if the underlying offense is strict liability as to

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the attendant circumstance, the same rule applies to the attendant


circumstances
Ex: A and B conspire to beat up V. They have conspired to commit
battery. If V is a cop, then could be conspiracy to commit battery upon a
law enforcement officer.
See also the statutory rape vs. FM hypocan you conspire to statutory
rape, but not to FM?
MPC doesnt answer and leaves vague with conduct that constitutes the
crime
But you need intent as to the underlying crime and the agreement. Not
negligence. Not recklessness. Not even knowledge (except for the limited
Lauria doctrine).
Lauria rule: the intent of a criminal supplier who knows of the criminal use to
which his supplies are put to participate in the criminal activity with the use of his
supplies may be established
an inference that he intends to participate based on his knowledge, plus:
(1) the seriousness, felonious nature of the crime, or
(2) one of the following factors:
his stake in the venture (cant just be sales, thoughtoo broad, would
encompass all suppliers if sale meant stake), or
no legitimate use for the good, or
volume of sale
AR: an agreement and an overt act in furtherance of the conspiracy
Overt act not required everywhere (it is required in NY)
Pinkerton Doctrine
There was (1) an agreement, (2) to which the defendant was a member, (3) to commit
the substantive offense. (4) There was an overt act (5) by a co-conspirator (6) in
furtherance of the conspiracy. (7) The offense was reasonably foreseen as a
necessary or natural consequence of the unlawful agreement.
Ex: A organizes a conspiracy to to banks. Hires B and C to rob banks 1 and 2. B
and C dont meet face to face, but know theyre part of a large conspiracy. At As
instigation, D knowing of the conspiracy, steals a car for robberies. B and C
perform robberies, using Ds Car.
Assuming all a single conspiracy to rob banks, then all guilty of conspiracy for
each of the crimes.
Plus, dont forget, the underlying offenses under Pinkerton.
REJECTED BY MPC
MPC 5.03 A person is guilty of conspiracy with another person or persons to commit a
crime if with the purpose of promoting or facilitating its commission he:
(a) agrees with such other person or persons that they or one or more of them will
engage in conduct that constitutes such crime or an attempt or solicitation to commit
such crime; or
(b) agrees to aid such other person or persons in the planning or commission of such
crime or of an attempt or solicitation to commit such crime.

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Knowledge not sufficient (as it sometimes is in attempt, with result crimes)need


actual purpose to go towards the underlying offense via conspiracy (unless Lauria
applies). Higher bar than attempt.
NY PENAL LAW 105.17 Conspiracy in the first degree. A person is guilty of
conspiracy in the first degree when, with intent that conduct constituting a class A
felony be performed, he, being over eighteen years of age, agrees with one or more
persons under sixteen years of age to engage in or cause the performance of such
conduct. Conspiracy in the first degree is a class A-I felony.
Normative Justifications:
Old formal justifications:
Retributive:
Agencywe are respsonible for joining dangerous groups.
Utilitarian:
Collective criminal agreement presents a greater potential threat (groups more
likely to move to extremes)
Allows earlier intervention into dangerous ac
New, primarily rationalized by the Procedural advantage. Conspiracy is driven by the
prosecutor:
Joinder
Venue
Co-conspirator hearsay exception
Trial together
Jurisdiction choices venue shopping
Extends the SoL
Prior bad acts
Early intervention
Hard targets
often, prosecutor will have the option to choose to use one or multiple conspiracies.
All of these tools often work best when prosecutor alleges a single conspiracynot a
huge benefit to alleging multiples, one is easier to infer, and you can get a larger number
of people in with a broad conspiracy.
But need to be carefulgo too far out on your conspiracy theory, will get overturned for
the entire prosecution (Kilgore)
Problems:
Overbreadth
Pliabilityis agreement a prosecutorial invention?
Is it okay that the prosecutor can often tell a different story to get a certain number
of strategic conspiracies?

Conspiracy: Actus Reus of over act (or


agreement)

The requirement of an overt act is very


loose. A phone call could be sufficient

D 816-824
Cases
Commonwealth v. Azim driver and two passengers get out and rob a student

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Conviction sustained because Azim (1) was associated with the alleged conspirators,
(2) had knowledge of the commission of the crime, (3) was present at the scene, and
(4) participated in the object of the conspiracy by driving them away.
All of this evidence lends itself to an inference of agreement, showing that a rational
fact finder could have found agreement.
Commonwealth v. Cook witness to rape, conspiracy?
There was insufficient evidence of agreement and therefore insufficient evidence of a
conspiracy
Sufficient evidence for accomplice liability, but not for conspiracy
However, if the evidence shows that there was as likely as not to have been an
agreementif other explanations are truly equally plausiblethen a rational fact
finder could not have found the act beyond a reasonable doubt.
Doctrine:
MPC appears to require only agreementno actual overt act requirement? Just need
agreement.
NY PENAL LAW 105.20 Conspiracy; pleading and proof; necessity of overt act. A
person shall not be convicted of conspiracy unless an overt act is alleged and proved to
have been committed by one of the conspirators in furtherance of the conspiracy.
Principles
An agreement can be sufficient to constitute an act in some jurisdictions
Creates an illusion that conspiracy reaches actual, not potential, harm, when really it
doesntthe act is pretty much invented.

Conspiracy: Agreement and Scope


D 824-838
Cases
People v. Foster (IL) Can there be a conspiracy if one of the parties never intended to
agree?
No commentary on decision to delete 2 or more from the statute, not persuaded the
legislature meant to adopt the unilateral theory applies rule of lenity and holds
bilateral intended.
Kilgore v. State (GA) co-conspirator hearsay exception, but was there agreement
between all the parties
Held: no community of interests between Kilgore and the co-conspirator who
testified because he success of that parties attempt to kill the victim was not
dependent on Kilgore in anyway (Spoke theory) No communication between parties
Braverman v. United States One conspiracy or multiple?
There are as many (or as few) conspiracies as there are agreements actually formed.
Doctrine
Unilateral v. Bilateral Conspiracy (from Foster)
Unilateral only one of the alleged conspirators need intend to agree to the
commission of an offense
MPC, NY PENAL LAW endorses unilateral
Seems partly redundant with attempt; comes out like this:

42

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Attempt to conspire = (failure to conspire) A asks B, B says no. this is an


attempt, because its not even a unilateral conspiracyA doesnt think there
is a conspiracy, but he tried to get one.
Conspire =
(factual impossibility of conspiracy) A asks B, B says yes, but means no.
not strict FI because of the idea of unilateral conspiracy.
Could easily see this being categorized as a factual impossibility
attempt to conspire, but is categorized instead as unilateral
conspiracy.
(factual impossibility to do the underlying crime) no bar on conspiracy
irrelelvant.
(successful) A asks B, B says yes, means yes.
Bilateral requires two or more people agree together to do something
Also incorporates the common-law Whartons rule: if crime requires 2 people to
commit, cannot conspire to commit the crime (Ex: dueling). Common law says
cannot have conspiracy to a crime that requires 2, because that is double-dipping.
This might not apply in the unilateral situation.
MPC and NY PENAL LAW reject bilateral conspiracy
Scope of the conspiracy
Hinges on knowledge of other actors; not on chain/spoke.
If you have the MR necessary for the conspiracy itself, then its scope is determined
by your MR of knowledge towards the others involved.
MPC 5.03
(2): Scope of Conspiratorial Relationship. If a person guilty of conspiracy, as
defined by Subsection (1) of this Section, knows that a person with whom he
conspires to commit a crime has conspired with another person or persons to
commit the same crime, he is guilty of conspiring with such other person or
persons, whether or not he knows their identity, to commit such crime.
(3): Conspiracy with Multiple Criminal Objectives. If a person conspires to
commit a number of crimes, he is guilty of only one conspiracy so long as such
multiple crimes are the object of the same agreement or continuous conspiratorial
relationship
Renunciation of Conspiracy
MPC 5.03(6) to invoke affirmative defense that renounced, must thwart and be
complete and voluntary renunciation of criminal purpose
Not enough to try, actually have to stop the bomb
A final limitation:
Probably the victim of a crime cannot be a conspirator
But the perpetrator might be able to himself conspire with the victim in a unilateral
situation.
Rationales
Reasons for Unilateral theory
A person who believes he is conspiring with another is a danger to the public
regardless of whether he achieves his objectives
Still shows firm commitment to carry out the crime
Reasons against Unilateral theory

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Does not punish dangers especially inherent in group activity bc there is no real group
activity
Punishable conduct for unilateral conspiracy will almost always satisfy the elements
of solicitation or attempted conspiracy

Accomplice Liability
D 848-854; D 855-868; D 868-879
Cases
State v. Ward Common law terminology and its significance
Types of actors
Principal in 1st degree does the crime
Principal in 2d degree guilty by reason of aiding, counseling, commanding, or
encouraging the commission in his presence
Accessory before the fact guilty by reason of aiding, counseling, commanding, or
encouraging the commission without having been present at the moment of the
perpetration
Accessory after the fact renders assistance to a felon in effort to hinder his
detection, arrest, trial or punishment.
Has knowledge of the others guilt
Basically, the common law was a mess.
Procedural Significance
Principal must be brought to trial in jurisdiction where offense took place
Accessory must be brought where assistance took place
If indicted as principal cannot be convicted of accessory or vice versa.
P & As may be tried jointly or P could go first. A cant come before P
Most/all of these distinctions have been abrogated
State v. Holeston (WV) lookout case
The prosecution must demonstrate that an accomplice shared the criminal intent of
the principal
Mere presence is not a crimeneed some intent state relevant to the crimenot
an evidentiary problem here. Full evidence, just not sufficient.
Riley v. State (AK) CSI Fairbanks (2 people firing into a crowd 1st degree assault)
When a result crime, an actor is an accomplice if he acts with culpability, if any, with
respect to the result that is sufficient for the offense itself
State v. Linscott accomplice to robbery and possibly murder?
Linscott was an accomplice to robbery and the murder was a foreseeable consequence
of the offense.
Foreseeable consequence doctrine
State v. Jeffrey Crazy British case
State v. V.T. stolen camera, VT is seen on camera, but never says/does anything
Not the same as Hoseltonjust not enough evidence for aid/abetting liability
State v. Genoa Undercover cop gets Genoa to lend money to purchase drugs
No accomplice liability where there is no substantive offense
Doctrine
Common Law
AR: Gave assistance or encouragement or failed to perform a legal duty to prevent it

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Mere presence, or even prior knowledge, does not make one an accomplice absent
showing defendant advised, investigated, encouraged, or assisted in perpetration
of the crime
Except: when there is evidence to show a previous conspiracy, mere presence
might be sufficient (Hicks v. US)
Does not need to be but/for, making it easier is sufficient (like a lookout)
At common law, merely attempting to aid is insufficient
BUT MPC says merely attempting to aid is sufficientsee 2.06(3)(a)(2)
MR: Intent to promote or facilitate the crime and Intent to aid the primary party and
intent that the assistance result in the commission of the offense charge
Should K, such as Lauria be enough in some cases?
But Riley differssays you can get accomplice to a recklessness crime.
Also But see MPC 2.06(4).
Underlying offense limitation: There can be no accomplice liability if there is no
substantive offense, or the substantive offense fails (State v. Genoa).
But MPC categorizes this as an attemptsee MPC 2.06, 5.01(3)
Natural and Probable Consequences Limitation (when there is another crime)
Did the primary party commit the target offense?
Was the 2nd party an accomplice in the commission of the target offense?
Did the primary party commit another crime?
Were the latter crimes, though not necessarily contemplated at the outset,
reasonably foreseeable consequences of the original criminal acts encouraged or
facilitated by the aider and abettor?
Corroboration limitation in Helmenstein: need corroboration of an allegation
against a would-be accomplice from someone/thing other than other accomplices.
Not in Federal law
YES in NYS
MR As to Attendant Circumstances?
Little case law, but possibilities:
Require purpose/knowledge as to attendant circumstance elements
Allow conviction if he acts w/ kind of culpability, if any, w/ respect to the
circumstance, that is sufficient to convict the primary
MPC leaves ambiguous
MPC 2.06(1): guilty of an offense either by his own conduct or for conduct of another for
which he is legally accountable
2.06(2): legally accountable when
(a) acting w/ culpability sufficient for commission he causes an innocent or
irresponsible person to engage; or (b) made accountable by the Code or law (c) an
accomplice of another in commission
2.06(3): a person is an accomplice if:
(a) with the purpose of promoting or facilitating the offense he
(i) solicits
(ii) aids or agrees or attempts to aid in planning or committing
NEED NOT SUCCESFULLY AIDcan be attempted aid.
(iii) has a legal duty to prevent and fails to do so

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BY DEFAULT, need PURPOSE to be an accomplice.


(b) his conduct expressly declared by law to establish his complicity
2.06(4): when causing a particular result is an element of an offense, an accomplice
in the conduct causing such result is an accomplice in the commission of that
offense, if he acts with the kind of culpability, if any, with respect to that result that is
sufficient for the commission of the offense:
notwithstanding the purpose requirement in 2.06(3), you can get to accomplice
liability for a lower-MR-result offense if you: have that MR as to the result and
you are an accomplice to the conduct, which requires you have an MR of purpose
that they engage in that conduct, and an AR of actually encouraging it.
MR as to result (same as underlying)
MR of purpose as to conduct.
AR of aiding/abetting conduct.
Then becomes a scope of conduct inquiryhow much does the would-be
accomplice have to know about/encourage the conduct in order to become
accomplice to the specific conduct? scope somewhat narrow.
Examples:
Taxi 1: passenger encourages driver to drive over speed limit, driver hits and
kills another. Passenger is an accomplice to reckless homicide, because
accomplice to conduct of speeding (MR of purpose for driver to engage plus
AR of encouraging), and had MR of reckless as to the result because of her
attitude to the conduct, which was indeed reckless as to the result.
Taxi 2: same, except driver runs redlight and then kills other. Passenger
arguably not an accomplice to reckless homicide, because not accomplice to
the conduct of running red light (no MR of purpose for driver to engage, no
AR of encouraging), although there might be a case that passenger was
reckless as to the result.
Columbine: gun seller sells guns to columbine, they shoot. Not an accomplice
to reckless homicide, because although arguably reckless as to the result, not
an accomplice to the conduct in the sense that had no MR of purpose
towards it, and did not specifically encourage that conduct.
In either 2.06(3) or possibly (4), What about the attendant circumstances? What
MR?
Possibilities:
Require purpose/knowledge as to attendant circumstance elements
Allow conviction if he acts w/ kind of culpability, if any, w/ respect to the
circumstance, that is sufficient to convict the primary
MPC leaves ambiguous
if legally incapable of committing the offense himself, can still be guilty if committed
by the conduct of another person for which he is legally accountable [2.06(5):]
UNLESS liability inconsistent with the purpose of the provision establishing
incapacity
2.06(6): not an accomplice if (a) victim; or (b) the offense is defined so that his
conduct is inevitably incident to its commission or
Terminates his complicity prior to commission and

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Wholly deprives the complicity of effectiveness prior to commission


Gives timely warning to law enforcement authorities or otherwise makes
proper effort to prevent the commission
2.06(7) may be convicted even if the person claimed to have committed has not been
prosecuted or convicted or has been convicted of a different offense or degree of
offense or has an immunity or conviction or has been acquitted
5.01(3) - Conduct Designed to Aid Another in Commission of a Crime. A person
who engages in conduct designed to aid another to commit a crime which would
establish his complicity under Section 2.06 if the crime were committed by such other
person, is guilty of an attempt to commit the crime, although the crime is not
committed or attempted by such other person.
NY PENAL LAW 20.00 Criminal liability for conduct of another. When one person
engages in conduct which constitutes an offense, another person is criminally liable
for such conduct when, acting with the mental culpability required for the commission
thereof, he solicits, requests, commands, importunes, or intentionally aids such person
to engage in such conduct.
There is a corroboration rulelike Hermensteinin NY.
Also, NY counts emboldening as aiding.
But not attempting to aidyou are then not an accomplice!

VIII. DEFENSES
Introduction and Burdens of Proof
D 480-497
Cases
In Re Winship:
Every essential element of an offense must be proven beyond a reasonable doubt.
But what constitutes an element, and when can the legislature simply shift them out
of the offense, and subject them to a lower level of proof? See Patterson.
Patterson v. New York burden of proof and criminal elements
A state is not required to disprove beyond a reasonable doubt every fact constituting
any and all affirmative defenses related to the culpability of an accusedit is only
necessary for the state to prove every element beyond a reasonable doubt.
In New York, EED is an affirmative defense; therefore, the burden can be on the D.
In Mullaney, in Maine, the state presumed an elementmalice aforethoughtwhen
there was intent and unless the D proved HoP. That is unconstitutional, because an
element was presumed and the D had to disprove.
Difference appears to be purely formal; in both, the D will have to show EED/HoP if
he wants to get off the hook in that manner. But one is characterized as an AD, the
other as disproving an element of the crime. However, one is deemed constitutional,
one not.
This makes the question of how we determine elements (as opposed to simply where
they are in the statute, which is what we have dealt with up until now) importantit
appears that both the majority and the dissent in Patterson used a similar test:

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What is the burden on the D of making this an affirmative defense?


What has it been historically?
Categories
Failure of Proof- all elements of the charge cannot be proven
Mistake is a clear example- ex: incest. If the person genuinely believes that the
person is not a relative, the state cannot prove the required mental element
Offense modifications: do more than negate an element; applies even when all elements
are established
Actor has apparently satisfied all the elements, but has not in fact caused the harm the
statute was intended to protect against
Ex- person may satisfy complicity in kidnapping if they pay the ransom
Common rule that a victim cannot be held as an accomplice even though his conduct
aided in the commission of the crime
Justification defense: one that indicates societys belief that the defendants conduct was
morally good, socially desirable, or (at least) not wrongful
thus, killing of another human being, is considered proper if it occurs for a
justifiable reason, such as self-defense
structure
necessity
proportionality
reasonable belief
Excuse defense: one that indicates that, although the actor committed the elements of the
offense and actions were unjustified, law does not blame defendant for wrongful conduct
law does not hold defendant morally or legally accountable for his actions
ex: mental illness, insanity, infancy
Nonexculpatory Public policy defenses
Ex- statute of limitations, diplomatic immunity, judicial, legislative, and executive
immunities, incompetency
Doctrine:
Common Law
In re Winship government must prove every element of a crime beyond a
reasonable doubt
Mullaney government cannot shift the burden of proof to the defendant by
presuming that element upon proof of the other elements of the offense
In that case, malice aforethought was presumed unless defendant could show that
it was in the heat of passion
Patterson - where the absence of heat of passion (or any other justification or excuse)
was an element of murder in Mullaney (malice aforethought) absence of "extreme
emotional disturbance" was not an element of the New York murder statute. Rather,
existence of such a condition was an express affirmative defense to murder that
mitigated the crime to manslaughter. As a non-element of murder, the state could
properly place the burden of proving its existence on the defendant.
We find elements of crimes by looking at (dissent test, but looks like majority also):
Fairness to D
history
Examples from class of what is okay and what is not under the Patterson test:

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Murder = 1) purposely or knowingly 2) cause the death of another human being 3)


without influence of sudden passion arising from adequate cause. D has burden to
disprove element #3.
Mullaney not constitutional
Reduce murder to voluntary manslaughter if D proves influence of sudden passion
arising from adequate cause.
Patterson Constitutional
Murder = causing the death of another human being. Defense = not done
intentionally or knowingly.
Not okay because in left field
Murder = 1) purposely or knowingly 2) cause the death of another human being.
Sentence = 20 to life; 0 to 20 if judge finds sudden passion arising from adequate
cause.
ConstitutionalApprendi allows you to lower the sentence based on a factual
finding at sentencing.
Murder = 1) purposely or knowingly 2) cause the death of another human being.
Sentence = 0 to 20 years; 20 to life if judge finds no sudden passion arising from
adequate cause.
Apprendi, Booker unconstitutionalcannot raise the sentence based on a
factual finding at sentencing.
MPC 1.12: Burden of Proof
(1): No person may be convicted unless each element is proved beyond a reasonable
doubt
(2): Subsection (1) does not:
(a): require the disproof of an affirmative defense unless and until there
evidence supporting such a defense.
(b): Subsection (1) doesnt apply to defenses which the Code or other laws plainly
require the defense to prove by a preponderance of evidence
MPC 1.13(9) "element of an offense" means (i) such conduct or (ii) such attendant
circumstances or (iii) such a result of conduct as
(a) is included in the description of the forbidden conduct in the definition of the
offense; or
(b) establishes the required kind of culpability; or (c) negatives an excuse or
justification for such conduct; or
(d) negatives a defense under the statute of limitations; or
(e) establishes jurisdiction or venue;
NY PENAL LAW 25.00 Defenses; burden of proof. 1. When a "defense," other
than an "affirmative defense," defined by statute is raised at a trial, the people have the
burden of disproving such defense beyond a reasonable doubt. 2. When a defense
declared by statute to be an "affirmative defense" is raised at a trial, the defendant has
the burden of establishing such defense by a preponderance of the evidence.
Justification v Excuse
Justification defense tends to focus on the wrongfulness of an act or result, while an excuse
defense focuses on the actor
Justification = fully justified (have not done anything wrong as a policy matter even though
all elements of offense are shown). ASPIRATIONAL.

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Excuse = UNDERSTANDABLE, but still wrong.


both have the same direct effect: acquittal of defendant
justified conduct: negates the social harm of the offense
excuse: although actor has harmed society, should be blamed for causing that harm;
negates the moral blameworthiness of the actor for causing the harm
Why should we care about this?
Sending clear messages to public
Providing theoretical consistency in criminal law
Could be important also in determining the liability of others:
If D is justified, so are accomplices. Not so with excuse.
If D is justified, others do not have a right to use SD against him. Not so with
excuse.
Burden of proof
Falls on defendant to prove justifications, etc.

Justification: Self-Defense
D 497-510; D 510-524; D 525-546 (through note 9)
Cases
United States v. Peterson (D.C. Cir.) people stealing windshield wipers, Peterson kills
one, claims self-defense
Peterson was the aggressor and thus cannot claim self defense
Summary case of the common-law doctrine.
People v. Goetz Subway rider shoots black kids thinking theyre going to rob him
The test for necessity is subjective belief that is objectively reasonable
The objective component is not ruthlessgets some personal facts in:
Can say hes been mugged
Probably cannot say that he panicked because theyre black.
State v. Wanrow woman kills alleged child molester
Persistent use of masculine gender leaves impression the objective standard is
applicable to an altercation between two men
Semi subjective? Get to this in a bit
State v. Norman woman kills her abusive husband while he sleeps
There was no imminent danger, such as must be instantly met with violence.
Common law Doctrine
Elements (from Petersonall hinge on NECESSITY)
Threat of death or severe
Proportionate response
bodily harm
Dont have to meet sword with
sword, about deadly force v.
Actual
deadly force
Apparent
Necessary (Most cases turn on
Unlawful
thisthis is the core of the
Immediate
doctrine)
Subjective (actual) belief
Not Aggressor (unless you tried to
Imminent (or immediately
withdraw and couldnt)
necessary)
Aggressor does not get castle
Death or sever bodily harm
Retreat (if available)
Objectively reasonable belief

50

Criminal Law Spring 2012

Not if dwelling (castle)


but yes if aggressormust rt.
The common law (and NY) Reasonable Belief requirement (subjective belief,
objectively reasonable)
The subjective half:
Wanronprobably all evidence can come in, including physical characteristics.
The objective half:
Goetz reasonable belief required from an objective element based on
circumstances facing defendant in his situation
Relevant knowledge about the person, physical attributes, prior experiences
Reasonable racism?
Wanron
gender is relevant to the reasonable person test
time-framing can be broad for the objective portion, as well.
It can be objectively reasonable to defend yourself with a different kind of
weapon.
Norman
BWS?
Can we say it was objectively reasonable because of a specific mental state
problem? Maybe because the V CAUSED the mental state problem?
The common law imminence requirements
Imminence requirement means that if someone threatens to poison you tomorrow and
you have no opportunity to do anything to him after this moment, you are powerless.
This looks bad theoretically (when it is certain they will poison you and no save will
intervene) but, in practice, the requirement ensures that you REALLY have no other
chance, AND that one wont arise (which is not a given).
MPC is different from both of the foregoing tests
subjective test and reasonable is not in 3.04
It is relevant what the actor actually believed but can still lost on the factsif the
jury doesnt think you actually had that subjective belief.
Evidence about you, context-rich, will always be relevant to this inquiry.
immediately necessary rather than imminent (NY appears to use this second MPC
test, also)
solves the desert hypo (Imminent means that if someone threatens to poison you
tomorrow and you have no opportunity to do anything to him after this moment,
you are powerless.)
but maybe too broad? Does this assume that nothing will change between now
and then?
The duty to retreat or comply under the MPC deadly force provisions (deadly force very
limited)
[MPC 3.04(2)(b)(ii)(1)]- even where deadly force would otherwise be justifiable
because the actor believes that such force is necessary to protect herself against death,
etc:
actor must retreat if she knows that she can avoid the need to use deadly force with
complete safety to herself (except castle doctrinework or home)

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Also, must surrender possession of a thing to a person asserting a claim of right


thereto and threatening her if she knows that she can avoid the need to use deadly
force with complete safety to herself.
Finally, must comply with a demand that she abstain from any action that she has no
duty to take if she knows that she can avoid the need to use deadly force with
complete safety to herself.
Some non-MPC jurisdictions dont require you to retreat, comply, etc. (right shouldnt
have to yield to wrong)
MPC takes a Minority Position- non aggressor cannot use deadly force to repel an attack
if she can retreat to a safe place, or otherwise has resources to avoid the use of force
Preserves sanctity of life, dont even kill aggressor if you dont have to
Castle exception: dont have to retreat if in your home or at work.
MPC
SELF-DEFENSE IS AN AFFIRMATIVE DEFENSE- 3.04(1): Subject to 3.04 and 3.09, use of force is justifiable when the actor believes force
is immediately necessary for the purpose of protecting himself against the use of
unlawful force
THESE 3 ELEMENTS ALWAYS REQUIRED for ANY SD in MPC (force or
DF):
Belief
NOTE: believes is subjective, but subject to limitations of MPC 3.09(2):
SD unavailable if his belief in unlawfulness of the force against him is an
erroneous mistake of law.
SD unavailable if his belief in the necessity of SD force is recklessly or
negligently formed, and the offense he is charged with has an MR of
reckless or negligent.
Immediate necessity
NOTE: Immediately necessary is more expansive than imminent, covers the
lit fuse scenario, last clear chance
Self-protection
3.04(2): Limitations on justifying necessity of use of force in the preceding section.
(a) force not justifiable when:
(i) resist an arrest the actor knows is being made by a peace officer, although the
arrest is unlawful
(ii) to resist force used by occupier or possessor of property, where the actor
knows the person has a claim of right to protect the property. This does not apply
when:
(1) actor is a public officer acting in performance of his duties or a person
lawfully assisting him therein or a person making a or assisting in a lawful
arrest
(2) the actor has been unlawfully dispossessed of the property, making reentry or recapation justified by 3.06
(3) actor believes force necessary to protect himself against death or serious
bodily harm

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(b) use of deadly force not justifiable unless actor believes such force is necessary to
protect himself against death, serious bodily harm, kidnapping, or sexual intercourse
compelled by force or threat. Nor is it justifiable if:
(i) the actor with the purpose of causing death or serious bodily injury, provoked
the use of force against himself in the same encounter
There is only a limited initial aggressor doctrine in the MPCjust that if you
provoked force with the purpose of death or serious injury, then it is
unavailabletighter than the plain initial aggressor test.
See MPC commentary, D 506A attacks B softly, B is entitled to retaliate
proportionately, insofar as Bs retaliation is disproportionate, and B uses DF,
a may defend himself.
(ii) the actor knows he can avoid necessity with complete safety by (a) retreating
or (b) surrendering possession of a thing to which a person asserting a claim of
right thereto or (c) by complying with a demand that he abstain from the action
that he has know duty to take.
This is the life-valuing approach of the MPCsee above
EXCEPT that
(1) no obligation to retreat from dwelling or place of work UNLESS he is
initial aggressor or assailed in place of work by another person who works
there, and
(2) If public officer or person providing assistance, or making an
arrest/preventing escape, can use force if justified even if the person resists or
threatens to resist
(c) person employing protective force may estimate the necessity under the
circumstances as he believes them to be when the force is used
3.04(3): justification extends to confinement as protective force only if the actor takes all
reasonable measure to terminate confinement as soon as he knows he safely can, unless
the person confined has been arrested on a charge of crime.
NY PENAL LAW S 35.00 Justification; a defense. In any prosecution for an offense,
justification, as defined in sections 35.05 through 35.30, is a defense.
This means the STATE HAS THE BURDEN OF DISPROVING when it is RAISED (see
above).
35.15 Justification; use of physical force in defense of a person.
1. A person may, subject to the provisions of subdivision two, use physical force
upon another person when and to the extent he or she reasonably believes
(reasonability standardlook to common law reasonability test) such to be necessary to
defend himself, herself or a third person from what he or she reasonably believes to be
the use or imminent use of unlawful physical force by such other person, unless:
(a) The latter's conduct was provoked by the actor with intent to cause physical
injury to another person; or
(b) The actor was the initial aggressor; except that in such case the use of physical
force is nevertheless justifiable if the actor has withdrawn from the encounter
and effectively communicated such withdrawal to such other person but the latter
persists in continuing the incident by the use or threatened imminent use of
unlawful physical force; or

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(c) The physical force involved is the product of a combat by agreement not
specifically authorized by law.
2. A person may not use deadly physical force upon another person under
circumstances specified in subdivision one unless:
(a) The actor reasonably believes (reasonability standardlook to common law
reasonability test) that such other person is using or about to use deadly
physical force. Even in such case, however, the actor may not use deadly physical
force if he or she knows that with complete personal safety, to oneself and others
he or she may avoid the necessity of so doing by retreating; except that the actor is
under no duty to retreat if he or she is:
(i) in his or her dwelling and not the initial aggressor; or
(ii) a police officer or peace officer or a person assisting a police officer or a
peace officer at the latter's direction, acting pursuant to section 35.30; or
(b) He or she reasonably believes that such other person is committing or attempting
to commit a kidnapping, forcible rape, forcible criminal sexual act or robbery; or
(c) He or she reasonably believes that such other person is committing or attempting
to commit a burglary, and the circumstances are such that the use of deadly physical
force is authorized by subdivision three of section 35.20.
FLORIDA STATUTES
This is a defense: the state must disprove once it is raised (like NY).
776.012 Use of force in defense of person.A person is justified in using force, except
deadly force, against another when and to the extent that the person reasonably believes that
such conduct is necessary to defend himself or herself or another against the others
imminent use of unlawful force. However, a person is justified in the use of deadly force
and does not have a duty to retreat if:
(1) He or she reasonably believes that such force is necessary to prevent imminent
death or great bodily harm to himself or herself or another or to prevent the imminent
commission of a forcible felony; or
expanded castle doctrineno duty to retreat whatsoever. stand your ground law.
reasonable beliefobjective plus subjective common-law standard
imminencecommon-law standard
must be in fear of great bodily harm, death, or forcible felony
AJ: unlike most use of deadly force statute, this one affirmatively grants the right to
use DF, rather than says there is no right unless. Expressive function of law?
(2) Under those circumstances permitted pursuant to s. 776.013.
which adds a presumptionsee below
776.013 Home protection; use of deadly force; presumption of fear of death or great
bodily harm.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or
great bodily harm to himself or herself or another when using defensive force that is
intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of
unlawfully and forcefully entering, or had unlawfully and forcibly entered, a
dwelling, residence, or occupied vehicle, or if that person had removed or was
attempting to remove another against that persons will from the dwelling, residence,
or occupied vehicle; and

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(b) The person who uses defensive force knew or had reason to believe that an
unlawful and forcible entry or unlawful and forcible act was occurring or had
occurred.
Thus basically amounts to castle-on-steroidsyou pretty much never need to
retreat where you meet the criteria in 776.012(1)(a) (unless constrained by the
aggressor doctrine 9n 776.041), and you get a presumption towards some of those
criteria when you are in certain castle-like situations listed above, in 776.013(1)(a)(b)
Furthermore, see 776.013(4) appears to support the presumption in
776.013(1)(a)-(b)if the enterer (the person against whom force was used) is dead,
and that enterer is presumed to have been entering unlawfully, then the force user
will have had reason to believe the enterer was entering unlawfully, and the force
user will therefore get the presumption.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a
lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or
titleholder, and there is not an injunction for protection from domestic violence or a
written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is
otherwise in the lawful custody or under the lawful guardianship of, the person
against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is
using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement
officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling,
residence, or vehicle in the performance of his or her official duties and the officer
identified himself or herself in accordance with any applicable law or the person
using force knew or reasonably should have known that the person entering or
attempting to enter was a law enforcement officer.
In the above situatons, the presumption listed in 776.013(a)-(b) does not apply.
(3) A person who is not engaged in an unlawful activity and who is attacked in any
other place where he or she has a right to be has no duty to retreat and has the right to
stand his or her ground and meet force with force, including deadly force if he or she
reasonably believes it is necessary to do so to prevent death or great bodily harm to
himself or herself or another or to prevent the commission of a forcible felony.
AJ: this appears to do no work formally, but only to add to the idea that this law is
phrased as if to encourage the use of deadly force. Expressive function of law.
(4) A person who unlawfully and by force enters or attempts to enter a persons
dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to
commit an unlawful act involving force or violence.
This appears to support the presumption in 776.013(1)(a)-(b)if the enterer (the
person against whom force was used) is dead, and that enterer is presumed to have
been entering unlawfully, then the force user will have had reason to believe the
enterer was entering unlawfully, and the force user will therefore get the
presumption.
(5) As used in this section, the term:

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(a) Dwelling means a building or conveyance of any kind, including any attached
porch, whether the building or conveyance is temporary or permanent, mobile or
immobile, which has a roof over it, including a tent, and is designed to be occupied
by people lodging therein at night.
(b) Residence means a dwelling in which a person resides either temporarily or
permanently or is visiting as an invited guest.
(c) Vehicle means a conveyance of any kind, whether or not motorized, which is
designed to transport people or property.
776.032 Immunity from criminal prosecution and civil action for justifiable use of
force.
(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is
justified in using such force and is immune from criminal prosecution and civil action for
the use of such force, unless the person against whom force was used is a law
enforcement officer, as defined in s. 943.10(14), who was acting in the performance of
his or her official duties and the officer identified himself or herself in accordance with
any applicable law or the person using force knew or reasonably should have known that
the person was a law enforcement officer. As used in this subsection, the term criminal
prosecution includes arresting, detaining in custody, and charging or prosecuting the
defendant.
(2) A law enforcement agency may use standard procedures for investigating the use of
force as described in subsection (1), but the agency may not arrest the person for using
force unless it determines that there is probable cause that the force that was used was
unlawful.
(3) The court shall award reasonable attorneys fees, court costs, compensation for loss
of income, and all expenses incurred by the defendant in defense of any civil action
brought by a plaintiff if the court finds that the defendant is immune from prosecution as
provided in subsection (1).
FLORIDA COURTS HAVE INTERPRETED THIS TO MEAN ###--something about
pre-trial hearing.
776.041 Use of force by aggressor.The justification described in the preceding sections
of this chapter is not available to a person who:
(1) Is attempting to commit, committing, or escaping after the commission of, a forcible
felony; or
(2) Initially provokes the use of force against himself or herself, unless:
(a) Such force is so great that the person reasonably believes that he or she is in
imminent danger of death or great bodily harm and that he or she has exhausted
every reasonable means to escape such danger other than the use of force which is
likely to cause death or great bodily harm to the assailant; or
(b) In good faith, the person withdraws from physical contact with the assailant and
indicates clearly to the assailant that he or she desires to withdraw and terminate the
use of force, but the assailant continues or resumes the use of force.
DF is not available to a provoker, except that it basically iswhenever he really
thinks he or she is in imminent danger of death/bodily harm, which is pretty much the
situation that it was available in the first place, except that the provoker cant use DF
to prevent a forcible felony, and has to try to retreat. Loses the
Trayvon Martin Case:

56

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As a preliminary matter, this law has no particularly special legal effect on


Zimmermanit entitles him to stand his ground, but that is similar to many other states.
It does not grant him the somewhat odd presumption in castle-like situations, because he
was not in one.
So the test will be:
He or she reasonably believes that such force is necessary to prevent imminent death
or great bodily harm to himself or herself or another or to prevent the imminent
commission of a forcible felony. 776.012(1)
How does the statute help/hurt Zimmerman?
Can Zimmerman follow Trayvon prior to his SD/what is the significance of that?
776.012(1)
There might be an issue of Z not just not retreating when scared, but actually
affirmatively following.
But Z can say that he was following to keep visual, did not get scared until after
he lost T, and then saw again. So all he did was not retreat once he perceived
the threat.
There is nothing in the law that disallows Z from following initiallythat seems
perfectly fine, since he can just say he got scared afterward.
Additionally, it doesnt seem like we can call the following a provocation under
776.041(2)(a)that would be far too strong.
But even assuming he did by following or otherwise, what is the significance of
provocation? 776.041(2)(a)
He is precluded from the defense of SD against forceful attack where he was the
provoker, except where Such force [against him] is so great that the person
reasonably believes that he or she is in imminent danger of death or great bodily
harm. 776.041(2)(a)
This would seem to be the part of the law that might help Z the mosteven if he
loses on not being the provoker, he can still say the force was necessary.
Was Zs response proportional? (Implied by the necessity test in 776.012(1))
This is at least a question.
What role will the pre-trial hearing pay in this case? 776.032
LAW SAYS ##+++##
Perhaps most likely though, the specific idiosyncracies of the statute are unlikely to help
Zimmerman. Rather, it will help him in other ways:
The presumption will not kick in, and although he may have some stand-your-ground
advantage in that he need not have retreated, his force was probably not proportional
or necessary in the situation, which is the fundamental problem.
But the statute may have given the police grounds for non-arrestthey may have
thought the statute allowed it.
May also have impacted the behavior of Zimmermanthis may be the rare case
where he read the law.
These points go to the expressive function of law.
Rationales
Pg 497-99 on why we have self defense
So many hoops because we are justifying the taking of a life, State is approving of the
killing

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Justification: Necessity
D 560-579
Cases
Nelson v. State (AK) drives into a mud pit, uses State property to get it out.
No necessity defense because no emergency, and there were alternatives
United States v. Schoon civil disobedience cannot be defended as a necessity
The Queen v. Dudley and Stephens cannibalism case
Cannot justify cannibalism by a necessity defense
Doctrine
Common Law
Nelson Test
Act charged must have been done to prevent a significant evil
Must have been no adequate alternative
Harm caused must not have been disproportionate to harm avoided
Decided ex-ante
Schoon Test
Lesser of 2 evils
Acted to prevent imminent harm
Reasonably anticipated a direct causal relationship between their conduct and the
harm to be averted
No legal alternatives to violating the law
Unger Necessity for prison escapes
Rules of general application:
Generally, not usually a defense to murder (Dudley & Stephens)
/Sometimes, the use of DF is prohibited under necessity
Retributive justification for the exception- someones life can never be a means to
an end
But, from a utilitarian perspective, there is no reason for this
MPC does not prohibit, NY mightnot clear!
Generally, a more objective test than SDmuch more UTILITARIAN
BALANCING-FOCUSED.
Harms prevented can be human or natural
MPC 3.02: Choice of evils
3.02(1): conduct the actor [subjectively] believes to be necessary to avoid harm or
evil is justifiable, provided that:
(a) harm sought to be avoided by such conduct is [objectively] greater harm
sought to be prevented by law defining offense charged AND
NOTE: Equal or lesser harm insufficient
NOTE: The balancing of evils is an issue to be decided at trial using an
objective testdoes not hinge on the defendants subjective belief of
necessity. However, the objective test could be said to be semi-subjective,
insofar as it is taken from what was apparent to him at the timesought to
avoid vs. sought to prevent.
NOTE: no discussion of immanency

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(b) Neither Code nor other law provides exceptions or defenses dealing w/
specific situation AND
(c) a legislative purpose to exclude the justification does not plainly appear
3.02(2): if actor reckless or negligent in bringing about the situation or appraising
necessity of conduct, unavailable in prosecution for which recklessness or
negligence suffices to establish culpability
Precludes conviction of a purposeful offense when the actors culpability inheres
in recklessness or negligence
NY PENAL LAW 35.05 Justification; generally. Unless otherwise limited by the
ensuing provisions of this article defining justifiable use of physical force, conduct
which would otherwise constitute an offense is justifiable and not criminal when:
1. Such conduct is required or authorized by law or by a judicial decree, or is
performed by a public servant in the reasonable exercise of his official powers,
duties or functions; or
2. Such conduct is necessary as an emergency measure to avoid an imminent
public or private injury which is about to occur by reason of a situation occasioned
or developed through no fault of the actor, and which is of such gravity that,
according to ordinary standards of intelligence and morality, the desirability and
urgency of avoiding such injury clearly outweigh the desirability of avoiding the
injury sought to be prevented by the statute defining the offense in issue. The
necessity and justifiability of such conduct may not rest upon considerations
pertaining only to the morality and advisability of the statute, either in its general
application or with respect to its application to a particular class of cases arising
thereunder. Whenever evidence relating to the defense of justification under this
subdivision is offered by the defendant, the court shall rule as a matter of law
whether the claimed facts and circumstances would, if established, constitute a
defense.
Notes:
Might exclude homicide/DF (otherwise limited)
Very objective, utilitarian balancing test (is necessarynot thought to be
necessarygravity of harm avoided which under ordinary standards clearly
outweighs the harm prevented by law, weighed by the court.)
Imminence requirement
No-fault requirement
Cannot use for civil disobedience (not only on considerations of statutory
morality)

Excuse: Duress
D 579-591; D 591-603; Supp 194-203
Cases
United States v. Contento-Pachon (9th Cir.) claims family threatened unless he imports
drugs
Defendant presented a triable issue on the element on duress. No necessity claim
because the coercion was not from physical force of nature
People v. Unger (IL) escape from prison case
No duress because not coerced to run away, yes on necessity though

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People v. Anderson (CA) Defense to murder?


Majority holds no, allowing will lead to more killings if can claim
Dissent doesnt buy
Doctrine
Common Law
Contento-Pachon Test
Immediate threat of death or serious bodily injury
A well-grounded fear that the threat will be carried out
No reasonable opportunity to escape the threatened harm
Unger addition
Must be COERCED BY A HUMAN to do the specific illegal act for duress to
applyif you dont do X, Im going to do Y. Not Im going to do Y.
Coerced Homicides (People v. Anderson)
This defense usually doesnt apply to murders
Idea that you should always take the risk that the person wont actually fulfill
threat- you might save your life and the other persons
Better to die than to kill an innocent
Cant reduce murder to manslaughter
Federal court requires:
Immediacy of coercive threat
Reasonable chance of fruition
No reasonable opportunity to escape
Rules of general application:
Based on the human coercion conceptmust be coerced, which means a human
being must force you to do that specific thingcoercion is not a broad threatI will
do Y to youbut a specific if you dont do X, Im going to do Y. (Unger)
MPC and NY both allow duress for homicide, but some jurisdictions do not.
MPC 2.09
2.09(1): Affirmative defense if coerced to do so by use of or threat to use, unlawful
force against his person or the person of another, that a person of reasonable firmness
in his situation would have been unable to resist
NOTE: does not apply to natural forces (natural forces cant be unlawful)
2.09(2): Unavailable if recklessly placed himself in situation in which it was
probable he would be subjected to duress.
Unavailable if negligent in placing himself in the situation whenever negligence
suffices to establish culpability
2.09(3): not a defense that a woman acted on command of her husband, unless
coercion would satisfy the defense
2.09(4): 2.09 does not bar the defense under 3.02 (necessity),
Rationales
Pg. 579-81 for principles of excuse
Could be thought of as justification- lesser of two evils
Usually excuse; someone who did not voluntarily commit an act is morally blameless
AJ: does this mean that we should not do ex ante weighing of the validity of the
defense? Shouldnt it all be ex post? Buell does not seem to agreesee the drug
mule problems.

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Utilitarian/ex ante considerations are usually what impact the expanded defense will
have systemically.
Retributive/ex post consideration: we understand your conduct.
lacked a fair opportunity to conform to the law

IX. SENTENCING AND PRISONS


Sentencing Reform Act of 1984 United States Sentencing Commission created, authorized to
promulgate
guidelines to govern federal sentencing
= Sentencing Guidelines effective Nov 1, 1987
- immediately challenged on constitutional grounds in every federal district
- Court upheld, noting that rehabilitative model outdated
- Indeterminate sentencing system had two unjustified and shameful consequences
o Variations of sentences on similar offenders
o Uncertainty of time offender would spend in prison
Revisions
- rejects imprisonment as a means of promoting rehabilitation, and states that
imprisonment should serve retributive, educational, deterrent, and incapacitative goals
- USSC determines sentencing; gets rid of power of sentencing judge and Parole
Commission
- Makes all sentences determinate
- Makes guidelines binding on the courts
- Authorizes limited appellate review of the sentence
Starts with premise that treating similar offenses and similar offenders alike forms the basis of a
just and rational sentencing policy, the Sentencing Commission created guidelines that take into
account both the seriousness of the offense, including relevant offense characteristics, and
important information about the offender, such as the offenders role in the offense and prior
record
- Guidelines seek to provide sentences that are certain, substantial, proportional and
fair
2005: SCOTUS held legislation authorizing Guidelines unconstitutional (6th Amendment) in US
v Booker
but also held that continue to apply in an advisory fashion
expanded discretion to sentence outside the guidelines