Reasons for punishment:

1) Deterrence
2) Vengeance/retribution
3) Rehabilitation
4) Incapacitation

Crim Outline
Thursday, November 12, 2009
1:14 PM

A crime has two parts:

1) Actus reus - the action that resulted in the crime
i. Must be a voluntary act (if dragged by someone else, unconscious - lacking a
mental element, etc, can be called involuntary act or no act at all)
a) A coerced act is still considered voluntary, as long as you willed your
muscles to do it
b) MPC does not define voluntary, but it labels some things as involuntary:
reflex, something done during unconsciousness or sleep, under hypnosis,
not a product of the actor's effort (ex being dragged out of the house) 2.01 - pg 1081 - says conduct must "include" a voluntary act, which means
that not every element has to be voluntary - also, MPC tends to break
things down by element (maybe more than common law which just looks
at it kind of as an act and a state of mind - more mushy)
c) Unconsciousness cannot be self-induced (like getting so drunk you black
out) as a defense ("Where not self-induced as by voluntary intoxication or
the equivalent, unconsciousness is a complete defense to a charge of
criminal homicide")
d) Unconsciousness is a failure of evidence defense, so it is on the
prosecutor's burden to prove consciousness (as an element of the crime),
while things like insanity are affirmative (yes, but) defenses, so their
burden shifts to the defendant (because the prosecution has proven all of
the elements of the crime)
ii. An omission cannot count as an act unless:
1) where a statute imposes a duty
2) certain relationships (e.g. child and parent)
3) when one has assumed a contractual duty to care for another
4) where one has voluntarily assumed responsibility for another and so
secluded the person that they cannot receive aid from others.
5) ALSO, if you are the one who is at fault for causing the harm
iii. There are 6 states that have good Samaritan laws, where you HAVE to act (#1
above) and those generally only create a legal duty to act when someone is the
victim of a crime
iv. The MPC does not have a good Samaritan doctrine (DOUBLE CHECK THIS)
2) Mens rea - the culpable intent, the mental state or mental element
Strict liability crimes have no mens rea requirement
MPC Section 2.05 (1) - a violation - the requirements of culpability do not apply (also
strict liability) - these are crimes that only result in a fine (like a traffic ticket)
MPC 2.02 (pg 1082) breaks it down to 4 terms:
1) Purpose
a) w/r/t conduct or result, has to be intended to be that way by the
perpetrator
b) w/r/t circumstances, has to be aware or hope or believe that the required
circumstances are present
2) Knowledge
a) w/r/t conduct or circumstances, must be awareness
b) w/r/t result must be aware that the result will occur or is practically
certain that it will occur
3) Recklessness
a) Conscious disregard of a substantial and unjustifiable risk that a normal
law-abiding person would not take
4) Negligence
a) Unawareness of a substantial and unjustifiable risk that it is a gross
deviation from the standard of care that a reasonable person would follow
If one of these mental states is sufficient, then so is any higher level of
culpability
Note: there is a problem with the MPC's culpability levels, b/c there is
nothing to apply to intent elements of specific element crimes (ex burglary = breaking and entering w/ intent to commit a crime therein) common law just treats it as a separate element, MPC just tacks it on
Note: A crime can be broken down into material elements:
1) Conduct
2) Circumstances
3) Result
Not all crimes have result or circumstance elements, but every crime has a
Crim Outline Page 1

Side note: If a case is reversed and remanded for a retrial,

it is not double jeopardy to try the person again for the
same crime

If you are tried for a crime, you can be convicted for that
crime or any lesser, included offense

Not all crimes have result or circumstance elements, but every crime has a
conduct element, even if sometimes the conduct is determined by the
result
Section 1.12 No person may be convicted of an offense unless each
element of the offense is proven beyond a reasonable doubt
Different elements of the crime can have different culpability requirements
a person is not guilty unless they acted with one of the four elements of
culpability with RESPECT TO EACH ELEMENT OF THE CRIME
MPC says 2.02 (4) (default rule specifically designed for times you wouldn't
know) if the law defining the crime describes the type of culpability required
without distinguishing between elements, then it applies to all elements, unless
a contrary purpose appears
MPC Section 2.02 (3) when the culpability is not prescribed by law, then it is
implied recklessly, knowingly or purposely
If legislatures want to create a crime of negligence, it has to be explicitly written
into the statute
A subjective standard of liability means that liability depends on the
actual state of mind of the defendant - what the defendant was thinking,
intending, actually wanting to do - purpose and knowledge are subjective
standards
An objective standard - liability is imposed regardless of what the
defendant was actually thinking - imposed based on an understood
standard of what ppl are expected to do - negligence is an objective
standard - standard of care of a reasonable person
Recklessness is a combination of objective and subjective - there is a
subjective component - in order to be reckless about a certain risk, you
must be consciously aware of the risk, but the risk is determined by what a
reasonable person would not run
In some states, only gross or criminal negligence has criminal sanctions, in
a minority regular civil negligence is all that is required, MPC defines
negligence as gross negligence
In common law, there can be disagreement about what constitutes
knowledge - what if someone purposely avoids knowing b/c is aware of a
possibility? What if someone knows that it is highly probable, but doesn't
know for certain? Most go with the MPC definition - knowledge or
practically certain
Broad sense of the term mens rea - as synonymous with moral fault
"guilt/culpable/blamable mind"
Mens rea in its more narrow sense - meaning, the particular mental state
required by the definition of that particular crime - this is the more modern
trend in thinking about mens rea (but broad sense still exists - ex. Felony
murder)

Child abuse - a person may be convicted of felony child abuse if they are:
1)parent 2)adoptive parent 3) in loco parentis or 4) responsible for the supervision of the
minor
AND
Caused abuse (whether by omission or commission)
Common law has held parents and step-parents to be responsible, but there are
arguments that boyfriends and other alternative parents (since the modern family unit
is changing) should also be held responsible
The parent does not lose the status of "protector" when they are the abuser, unless a
court takes custody of a child
Misprision of felony - you are aware of the felony of someone else and you do not report it

Homicide - has the result element that someone is dead

A) Murder - killing with malice aforethought
1) 1st degree - premeditated
2) 2nd degree - not premeditated
In PA, there is not difference b/w 1st and 2nd degree - premeditation can
happen within a split second, so as long as there was intent to kill or inflict
GBH, then it is first degree
VA says first degree murder is not a spontaneous non reflected murder,
but ruthless, cold-blooded and calculated with prior calculation and design
WV says there must be time between intent and action, but does not
specify how much time
CA has seen some incredibly gory murders, but if no proof of

Crim Outline Page 2

In loco parentis - Latin "In the place of a parent" acting as a temporary guardian or caretaker of a child,
taking on all or some of the responsibilities of a
parent

 CA has seen some incredibly gory murders, but if no proof of

premeditation, not 1st degree
How could you know it was premeditated?
Evidence - planning activity, motive, prior relationship b/w victim
and killer, method of killing (ex. Bomb implanted in someone's
heart)
Many states have gotten rid of the distinction between first and second
degree murder
Depraved heart/implied malice murder is second degree murder - when
the defendant acts recklessly for no justifiable reason w/ an extreme
indifference to the risk of human life
It's unclear whether the actor must be aware of the risk - most
cases, when it is such extreme risk, the only person who would not
be aware of the risk is someone who is extremely drunk, and
intoxication is not an excuse
Some states take into account how high the risk to others was (NY)
MPC keeps only one kind of murder - purposely or knowingly OR reckless w/ extreme
indifference to human life
(Also includes acting, accomplice-ing, attempting or fleeing from robbery, rape,
arson, burglary, kidnapping and felonious escape as the predicate crimes that
can convict for reckless murder w/ rebuttable presumption of extreme
indifference to human life b/c MPC does not have felony murder)
B) There are two kinds of manslaughter - killing a human being without malice
aforethought
1) Voluntary
Murder can be reduced to manslaughter if there was adequate
provocation - "calculated to inflame the passion of a reasonable man and
tend to cause him to act for the moment from passion rather than
reason."
ADEQUATE PROVOCATION - an act of killing committed:
1) under the influence of passion or in the heat of blood
2) produced by a legally adequate provocation and
What is legally adequate provocation?
Use objective, reasonable man standard
What is this?
Common law says any reasonable man, w/o taking
into account individual personality traits of the
person being provoked (sometimes things like
race, age can be taken into account) - more
objective
MPC is broader - "a person in the actor's situation
under the circumstances of what he believes them
to be" - more subjective - this is called EXTREME
EMOTIONAL or MENTAL DISTURBANCE in the MPC
(does not use the term reasonable person)
BUT, Cassassa was clearly emotionally
disturbed (guy who stabbed his ex girlfriend
in the neck and drowned her in the
bathtub), but court ruled it was too peculiar
to him - not enough
Cause the person to lose all reason and judgment
Calculated to inflame the passion of a reasonable man
and cause him to act w/o reason
3) has been committed within a time before the blood would have
cooled
Words can be held in some states to never be sufficient to create
adequate provocation
Also, if you hear about something happening from someone else (so
and so slept with your wife), that might be enough - some states
have an exception for words that inform you of something heinous
Cooling time? Rekindling?
Note, the defendant cannot be the one who instigated the
provocation in the first place
Provocation can be seen as a partial excuse (the killer couldn't
control himself) or a partial justification (the victim deserved it, and
in this case, what was done wasn't wrong)
Partial defense = lesser crime conviction, not acquittal
MPC has only manslaughter - either through extreme emotional
disturbance (see above) or reckless killing - this is the equivalent of

Crim Outline Page 3

Note: in criminal cases, contributory negligence is not

a defense

disturbance (see above) or reckless killing - this is the equivalent of

voluntary manslaughter
2) Involuntary
You cause someone's death unintentionally, but behaving in a criminally
negligent or reckless way (there used to be statutes that only required
ordinary negligence, but not anymore)
MPC calls this negligent homicide - and it only counts when it is grossly
negligent
Negligence must have occurred simultaneously with a time when
acting would have saved the person (cause in fact)
Negligence is based on an objective standard of how the reasonable
person would act
C)

Felony-murder
This only exists in common law (see above for MPC's rebuttable presumption of
extreme indifference to human life under the circumstances of acting,
accomplice-ing, attempting or fleeing from robbery, rape, arson, burglary,
kidnapping and felonious escape)
The death must be linked to the felony
Ex - if burglar scares resident and they have a heart attack and die, felonymurder can apply, BUT
If resident is upstairs in bed unaware of burglar downstairs and has a heart
attack and dies, felony murder does NOT apply
The death can occur after the commission of the crime, and as long as it is
sufficiently linked, it can still count for felony-murder
Some courts rule that the predicate felony must be one that is known to be
dangerous to life and likely to itself cause death (Serne)
Known to whom? The reasonable man or the defendant? Courts have
gone both ways
The mens rea required for felony murder can be construed to be broad or
narrow (see mens rea above)
Broad - the predicate felony must be inherently dangerous in and of itself
(this is the CA ruling - but they also will convict of second degree felony
murder for nondangerous predicate felonies)
Not always a problem, b/c if not inherently dangerous, can often still
convict on depraved heart murder as long as the person was aware
of the risk
When looking at it broadly, if the crime includes many different
crimes (ex - drug crime that includes transportation, sale, etc), you
can look at just the part of the statute that was being committed
and decide if that act was inherently dangerous
Narrow - the predicate felony must have been dangerous based upon the
facts of the case and the way the felony was carried out (RI)
What makes it dangerous?
Majority argues must have created a foreseeable risk
Dissent says must have created a high risk (but what is high?
Death only occurs in less than 1% of armed robberies, yet that
is defined as inherently dangerous even in the abstract)
Courts disagree on which way to construe the requisite predicate felony
Merger doctrine - You cannot use a felony that was a part of the murder itself as
the predicate felony for felony-murder (ex - assault with a deadly weapon) just
to get out of proving mens rea or to escape provocation defenses - these crimes
merge with the murder - this came from Ireland's inherently dangerous
doctrine
Wilson held that burglary of the assaultive variety cannot be held as a
predicate felony for felony-murder, when a guy broke into his ex wife's
house to kill her
Burton held that you can use those felonies that had an independent
felonious purpose, you cant use the felonies whose purpose was the
killing itself (lawyer tried to say that armed robbery was like burglary of
the assaultive variety and therefore merged) - independent felonious
purpose rule
Hansen threw all this out and said go back to the intent of the legislature if the felony will expand felony murder too much, then don't use it (ex shooting into a house w/ intent to scare has indep. purpose, so could get
felony-murder, but shooting into house w/ intent to kill would merge, so
could use provocation and get voluntary manslaughter)
But then that all got thrown out the window
AS OF RIGHT NOW, if a crime has an assaultive component, then it merges
with the murder and cannot count as a predicate felony for felony-murder

Crim Outline Page 4

with the murder and cannot count as a predicate felony for felony-murder
So as of right now,
Armed robbery is out
Arson is in
Sale of cocaine is in
AND, it appears that we are looking at the crime in the abstract and not
based on the facts of the case, but each ruling is different
What if someone other than the felon does the killing (e.g. police officer, victim,
etc)
Two views: Agency theory and proximate cause
1) Agency theory - The felon has to commit the murder himself, not a
non-felon - whoever it was who fired the bullet is treated as the
agent of all of the felons - so, all accomplices can be tried as well
2) Proximate cause theory - has been growing - says that the felonymurder rule can be applied in any situation where there is a killing
proximately caused by the commission of the felony (in furtherance
of)
- Must happen in a sufficiently direct way - it is foreseeable that
the death could have been caused when committing the
felony
Most legislatures do not apply the above if the felon is the one who ends
up dead
Loophole: in CA, they follow the agency theory. HOWEVER, they can use
the provocative act murder doctrine or an implied malice theory if the
felons commit a highly dangerous crime that can be construed as
consciously disregarding life, ending up with the same results (second
degree murder)
MPC follows similarly that even if the felon was not the one who
actually committed the killing, can be convicted on an extreme
indifference to human life theory

Mistake as a defense
Common law splits it into:
1) Mistake of Fact
2) Mistake of Law
Generally, mistake of fact can be a defense and mistake of law canNOT, but this
is a major simplification
Justice Bramwell held that if the person knew they were committing an immoral
act (using mens rea in a broad sense), then they were guilty, even if there were
mistakes about circumstance elements
Justice Bret says if they thought they were committing a crime of a lesser
offense, then that was sufficient mens rea, but if they did not think they were
committing a crime at all, then that is not mens rea
This still holds today in grading in common law for crimes that are
essentially a single offense - if you think you are stealing something not
worth much and it turns out to be worth more, then you can be convicted
of the higher offence
However, this can't go the other way - if you think you are stealing
something valuable and it turns out not to be worth much, then you
can't be convicted of the higher offense, b/c it lacks the actus reus
Strict liability offenses do not allow mistake as a defense
Strict liability crime is a crime to which at least one element has no mens
rea requirement
Ex statutory rape
Depends on the state - CA allows a defense of mistake of age if it
was a reasonable mistake
BUT, CA does not allow mistake of age defense for child molestation
(which includes sexual intercourse and other sexual touching) when
the difference is a younger age, b/c it holds a high importance on
protecting minors
- Could say the high punishment shows how important it is to
protect minors
- OR could argue that the high punishment shows that it should
only go to those w/ requisite mens rea
CA also holds mistake of age is not a defense when selling drugs to a
minor
Ex assaulting a police officer (doesn't matter if you know it is an officer)
Ex speeding
Ex selling liquor to a minor

Crim Outline Page 5

Ex selling liquor to a minor

Morisette held that typically, strict liability offenses have a number of
features:
1) Usually, it is a fairly recent statutorily created offense
2) The penalties are commonly relatively small
3) Conviction typically doesn't stigmatize a defendant (or at least not
much)
4) They also say that the accused, if they are trying to conform to the
law, is in a position usually to prevent the violation with no more
care than what society would reasonably expect
If we are looking at a statute that is a federal adaptation of a
common law crime which doesn't explicitly state a specific mens rea
requirement, we will assume that the congress meant to include
whatever common law mens rea requirement existed
Staples did not hold this way on a newer statute - they mentioned that the
high penalty must have implied that there was a required mens rea, even
though it wasn't written into the statute, but this wasn't their main
reasoning - took on a narrower view of strict liability - if you want it to be
strict, write it into the statute
Generally, little strict liability crimes when the person is clearly not
culpable will not be prosecuted, b/c it creates bad publicity for the legal
system, but that leaves a lot of unchecked discretion to the DA
General intent crimes - mistake of fact is allowable if it is a reasonable mistake
Specific intent crimes - mistake of fact is a defense if it negates the required
intent, even if it is NOT reasonable
Mistake of consent and rape
Rape is usually seen as a general intent crime, so reasonable mistake is
required
Reasonableness may be seen differently from a man and a woman this can get sticky
MA keeps rape as a strict liability crime, so mistake of consent is not a
defense
England had said honest mistake (whether reasonable or not) was a
defense, but changed in 2003 to require reasonable mistake
Sometimes honest mistake (whether reasonable or not) is still allowed as
a defense? DOUBLE CHECK
Mistake of law
Generally is NOT a defense
Public policy argument that "the exception would swallow the
rule" - slippery slope - everyone would try to use it as a defense
NY by statute has adopted some limitations to the mistake of law rule:
15.20 - the defendant in exceptional circumstances is not liable if they are
relying on a specific statement contained in a statute (although Marrero in
NY did not follow this and went with MPC instead)
Direct mistake of law s the least likely to be allowed as a defense
One exception: if one element of the statute is awareness of the
law - then, if you claim that you were unaware, you did not fulfill
one of the elements - it's a failure of proof defense (even if
unawareness was unreasonable, but still innocent - see Cheek case)
Willful w/r/t taxes has a particular meaning - voluntary and
intentional violation of a known legal duty - b/c tax law is so
complicated
- Outside tax context in crim law, you rarely have to know you
are violating some legal duty in order to be willful
Different-law or collateral mistake
I knew I was doing this thing, but I didn't know that a separate
statute made the conduct that I was doing classify as illegal under
the statute that I am being charged for
Generally, this is only permitted in rare circumstances - when the collateral mistake was for a specific intent crime and
the mistake negatives the specific intent
- When the collateral mistake was for a general intent crime
and the mistake negatives the required mens rea for the crime
Lambert's case was overturned on grounds that holding her liable for
failing to register as a felon after being in LA for 5 days was
unconstitutional b/c:
1) She was being convicted for an omission
2) The punishment does not fit the crime - it's overly harsh
3) No notice and nothing that should have led her to even inquire
about this crime (this is not a profession that has to be licensed,
Crim Outline Page 6

Note: Prosecution cannot appeal a ruling of not

guilty, but they can appeal a granted motion to
dismiss.

about this crime (this is not a profession that has to be licensed,

she's not engaging in a dangerous activity) - no inquiry notice
4) Purpose is not very compelling - it is a weak state purpose - it is lazy
on the city's behalf
Note: she was not allowed a direct mistake of law defense - rather,
the law itself was held to be unconstitutional
MPC does not separate
- If a mistake negatives the required mens rea, to establish a material element, then it is
a defense
- If the law explicitly says that mistake is a defense, then it is a defense (otherwise,
mistake of law is NOT a defense)
- *Mistake is NOT a defense if even if things had been as the defendant has believed,
then it would still have been a crime, but it can lower the charge (ex - I thought she
was 16, but she was actually 14 and 16 is still illegal, but not as harsh of a punishment
as 14, then only charged as though she was 16)
- Mistake of law is ONLY allowed if:
The statute is not yet published or reasonably available to be known OR
The defendant was acting on a reasonable reliance on an official statement of
law that was later determined to be erroneous (by statute, by courts, by an
official statement from a public officer, administrative grant of permission, etc)
The above must be shown by a preponderance of evidence

Causation
1) But for cause, aka actual cause
But for defendant's act, victim would not have died AS and WHEN he did
2) Proximate cause (MPC calls legal cause)
Proximate cause says that it is a but-for cause that is sufficiently closely
connected to the ultimate harm (but it is debatable what is "sufficiently close")
The ultimate harm should have been foreseen as reasonably related to the acts
of the accused beyond a reasonable doubt
Independent intervening acts can break the chain of causality, especially if
intervening event has a higher level of culpability than the first event
Courts by and large tend to think that very often a key question is: was
death foreseeable as a result of what the defendant did, but sometimes
the courts don't necessarily agree on what has to be foreseeable (Arzon =
result, Warner-Lambert = chain of events)
Note: you can manipulate these foreseeability tests depending upon how
you characterize the event, e.g.:
Death
Fatal helicopter crash
The crash of two helicopters brought on by extreme negligence on
the part of one or both pilots
Foreseeability of harm is not always necessary for proximate causation
Ex - take your victim as he comes - you punch someone in the mouth, not
knowing he is a hemophiliac - still responsible for resulting death, even
though it was not foreseeable
Foreseeability is not always enough to guarantee proximate causation
Kevorkian - his patients always had to do the last step in the causal chain
to commit suicide, so that that would be the independent, intervening act
An intervening act cannot be seen as independent if it is coerced or forced
by a legal duty (like the firefighters and police officers who were killed, b/c
they were acting under a legal duty as a part of their jobs)
If a someone kills themselves b/c a defendant drove them to do so, the
defendant can still be held liable for the victim's death, but generally, if
the defendant just takes advantage of the killer's poor mental state, that is
not enough of a direct causation
If the defendant drives the person to kill someone else other than
themselves, then the defendant may or may not be held liable - may
be held to break the chain of causality, b/c not foreseeable
When D gave V a gun b/c V slept with D's wife and was drunk and
depressed and V killed himself, D was not held liable
BUT, when D allowed crazy V loose, who then killed police officer, D
was held liable
In general, if there is an intervening act by a person acting in a free,
informed, independent way, that's considered generally to relive the D of
liability - the D's behavior will not be considered the proximate cause - the
causal chain is broken
Dependent intervening cause (non-MPC name) - the action of another or
some physical event - some intervention that is a response to what the

Crim Outline Page 7

some physical event - some intervention that is a response to what the

defendant did or the hazardous situation that the D created - this does
NOT break the causal chain - it is viewed as a response generated by D's
actions - unless it's really unusual, unforeseeable, abnormal
Drag race - V suggests drag race and then dies in dangerous
maneuver, D friend drag racing is not liable
Drag race - D suggests drag race and V kills self and 6-yr-old girl in
oncoming car - D liable
D chases V with bat - V runs away into highway and gets hit by a
car - D liable b/c escape was foreseeable and danger was created by
D in the first place
2 Ds play Russian roulette and pass to friend, V who dies - liable
Court says for drivers, there is skill involved, while for Russian
roulette, it's all a matter of chance - says his driving style was a
choice, while in Russian roulette, there was only one option - no skill
or decision as to what move to make - once the game is being
played, only one move to make
Confusing b/c courts muddle the way that they define the term
cause/causation:
1) Scientific notion - one event causes another (like in every day
explanation)
2) In the sense of responsibility - whether the person should be held
responsible for the harm
MPC definitions:
Causation = but-for cause PLUS
1) If result must be purposely or knowingly, then the actor must have acted with
the purpose of creating the result or having it w/in contemplation UNLESS:
a) A the result occurred, but to a person/property that the actor did not
intend
b) A lesser harm occurred than what the actor intended
c) The result was close enough to the intended result that it is just to hold
the actor liable
2) If the result must be recklessly or negligently, the person must have been aware
of the risk or should have been aware of the risk UNLESS:
a) A the result occurred, but to a person/property that the actor did not
intend
b) A lesser harm occurred than what the actor intended
c) The result was close enough to the intended result that it is just to hold
the actor liable
3) If the result has strict liability, then the result has to have been a probable
consequence of the actor's conduct

Attempt
- Any crime that has a result element (X), any attempted X must have had intent to
bring about X.
Sometimes, intent can be proven by acts w/o explicitly stating that that was the
intent, but the acts must be strong enough to stand alone
Recklessness is not sufficient
Even if low probability, but he believes he is likely to kill or hopes he might kill
and does kill, it's murder, or misses, it's attempted murder (HIV+ sex cases)
- Any crime without a result element (Z), in order to be guilty of attempted Z, you must
have engaged in behavior that would have committed Z had you succeeded
- Most courts do not allow attempted felony-murder (in which someone is hurt during
the commission of a felony, but not killed) - where would you draw the line? If
someone is hurt? If they point a gun? Etc.
Arkansas is a rare exception that does allow for attempted felony-murder
- If you attempt to murder A and instead gravely injure B, some states will allow for
attempted murder for A or B, most states won't allow for both
- How close must one get to completion of the crime for it to count as attempt?
The proximity approach - the defendant isn't guilty of attempt until the
defendant has come "dangerously close to success," which varies on factors like
how serious of a crime it is - in all reasonable probability, the crime would have
been committed had this intervention not occurred
The equivocality approach - acts that speak for themselves - if the act is so
unequivocal that intent is clear, that is the only thing that can be close enough
to constitute attempt (even if there is an equivocal act and a statement of
intent, that is not enough unless the act shows no other possibility than the
intent to commit the crime)
- Factual and legal impossibility? Impossible to distinguish, but legal impossibility is a

Crim Outline Page 8

- Factual and legal impossibility? Impossible to distinguish, but legal impossibility is a

defense, and factual possibility is not a defense CHECK BARBRI OR SOME OUTSIDE
SOURCE
- MPC's attempt:
One is guilty of attempt, if when acting with the culpability required for the
crime, you are caught:
1) Doing something that had the circumstances been as you believed them would
have been the crime
2) Doing something with the purpose of causing or with the belief (knowledge) that
you will cause the result that constitutes the crime
3) Taking a substantial step towards committing the crime, which can include
(these will all be questions for the jury to decide whether or not sufficient):
a) Lying in wait or searching for the victim
b) Enticing the victim (or seeking to entice) to come to the place where you
intend to commit the crime
c) Scouting out the place to commit the crime
d) Unlawful entry with the intent to commit the crime
e) Possession of materials specifically designed for the crime that have no
other lawful use under the circumstances
f) Possession of materials to be used for the crime near the crime scene
which have no lawful use under the circumstances
g) Soliciting an innocent person to engage in conduct that constitutes an
element of the crime
4) *An attempt to aid the commission of the crime, even if the crime is not
completed is sufficient to be charged for attempted commission (i.e. attempted
accomplice = attempt)
5) *Abandonment is a defense if there is a complete and voluntary renunciation,
and not just b/c you are about to get caught or you plan to wait to do it later or
to someone else instead
In other words, the MPC requires:
Purpose w/r/t conduct element
Purpose or belief w/r/t result element
And whatever level of culpability the completed crime requires w/r/t any
circumstantial element of the crime (so for strict liability crimes, there
doesn't need to be an awareness of the circumstances required)
Impossibility is not a defense w/ MPC - it is based on what the actor BELIEVED
the circumstances were - much more subjective approach
Only exception is if the person believed that they were breaking a law that
actually didn't exist - then, there is nothing to prosecute on b/c there is no
crime which was attempted

Accomplice Liability
- An accomplice is guilty for the completed crime - does not have to be given a lesser
sentence
An accomplice after the fact may be convicted of a lesser crime, like obstructing
justice
- Aiding and abetting - assisting the perpetrator of the crime in some way or
encouraging, inciting, commanding, paying for the commission of the crime (with
intent that the crime be committed)
- To be an accomplice, you must:
1) act with the intent to aid or encourage the perpetrator to engage in the conduct
constituting or resulting in the commission of the crime
Must actually want the crime to be committed (giving directions to a drug
dealer is not enough if you don't care if the person buys drugs or not)
2) AND you have to act with whatever mens rea is required for the target crime
If there is a result element, you must be reckless/negligent if that is
sufficient for the completion of the crime (ex. negligent vehicular homicide
when encouraging someone to speed)
For circumstance elements, generally, the accomplice must be at least
aware of the circumstance, even if it is a strict liability crime (with rare
exceptional jurisdictions)
If it is not a strict liability crime, it is unclear what the requirement is
for circumstance elements
BUT, does not have to be but-for cause - if a person encourages a murder, but
the murderer would have committed the crime regardless, the person is still an
accomplice
If a person attempts to aid or encourage, but the perpetrator is unaware of the
attempt, common law will not find that person guilty as an accomplice (different
from MPC - see below)

Crim Outline Page 9

from MPC - see below)

If a person is an accomplice to a crime that is not fully completed, they are still
an accomplice to the ATTEMPT
unless there was no attempt at all, and then there is not crime, so there
can be no accomplice (different under MPC - see below)
Natural and probable consequences rule - Suppose A sets out as an accomplice to P in
the commission of some crime, BUT, P also commits some other crime that A did not
intend to aid or encourage. Can A be considered an accomplice to the second crime?
Yes, as long as crime 2 was a natural and probable consequence of the attempt to
commit crime 1
CA says crime 2 must be "reasonably foreseeable"
Felony murder rule says if I am an accomplice and you kill during burglary, you are
guilty of murder and so am I
The innocent instrumentality doctrine - if you force someone else to commit the
crime, the "accomplice" is convicted as the perpetrator - the D is using the primary as
a tool to commit the crime
You can't have the outcome of a principal acquitted and an accomplice convicted in
the SAME TRIAL, but that outcome can occur if they are tried separately
Excuses will only be an individual defense that does not reach to cover accomplices,
but justifications are a defense against the act itself, so should cover all people
involved
SO, if you can't create the perpetration of an actual crime, then you can't create
accomplice liability (ex - the police officer hunting or the guy who wanted to get
his thieving friend caught)
An accomplice can be convicted of a higher degree of crime if they had the
higher degree of mens rea than the direct perpetrator
MPC:
With PURPOSE of promoting or facilitating commission of the crime, you
Solicit someone else, aid (or agree to aid or attempt to aid) in planning or
commission, fail to prevent the commission if you have a legal duty to do
so
If there is a result element, the accomplice must act w/ required mens rea of the
crime for that result
Defenses:
The accomplice is a victim of the crime
The accomplice's conduct s inevitably incident to the crime's commission
The accomplice wholly terminates complicity AND
Prevents its completion/properly tries to
OR
Warns the police
Someone may be convicted of accomplice even if the primary criminal is
acquitted, is convicted of a lesser/other crime or is legally immune from
prosecution
An accomplice is also guilty if they get an innocent/irresponsible person to
unknowingly commit the acts that constitute the crime
MPC does NOT follow the natural and probable consequences rule - if you
commit other crimes that are a part of the commission of the crime I facilitate, I
am guilty for those, but not for an entirely separate crime that I had no intention
of assisting with
MPC deliberately does not say what the required mens rea is for circumstance
elements - leaves it to the discretion of the courts
If a person attempts to aid or encourage, but the perpetrator is unaware of the
attempt, MPC still hold them guilty for accomplice liability, b/c they would have
been guilty under the circumstances as they believed them to be
If a person is an accomplice to a crime that is not completed, they are still an
accomplice to the ATTEMPT
Even if there was no attempt at all, and then there is no crime, the
accomplice can still be convicted of attempt, b/c they would be guilty
under the circumstances as they believed them to be

Conspiracy
- An agreement by two or more persons to commit some unlawful act or a series of
unlawful acts
- A person is guilty of conspiracy to commit crime X, if with the intention of furthering
crime X, a person agrees with some other person to commit crime X - it's just the
agreement
- Some states require the agreement plus one overt act from one of the conspirators in
furtherance of the conspiratorial goal
MPC requires overt act unless it is a first or second degree felony

Crim Outline Page 10

Entrapment - exists for reasons of wanting to curb

possible excesses of police power - if the police make
use of certain incentives for a person to commit a
crime, a subjective or objective test will be used to
determine if the police had gone to far
Usually if D can show she was not usually
disposed to commit that crime
*Entrapment is a very narrow defense*

 MPC requires overt act unless it is a first or second degree felony

- Unlike attempt, common law conspiracy does not merge into the completed crime - in
other words, you can be convicted of both conspiracy to commit the crime and the
crime itself
AND, that means that the two sentences consecutively can exceed the
maximum sentence allowed for the completed crime by itself
In the federal system, supposedly, there are sentencing guidelines which
prevent the judge from imposing consecutive sentences for crime and
conspiracy to commit that crime, but they aren't enforced anymore
- MPC does not allow this - sect 1.07 (1(b)) - cannot convict a person BOTH of a
completed crime AND a conspiracy whose only object was to complete that crime
- Why doesn't conspiracy fade away once the crime is committed?
With conspiracy, there are two aims:
1) To permit early intervention - arrest and prosecution before the crime is
committed
2) To punish ppl for creating the special dangers that are attendant to group
criminality
a) Can increase the likelihood that the crime that would actually be
committed
b) Can increase the ability to commit more complicated crimes
c) Ppl in a group are less likely to back out or change their minds
- Conspiracy charges offer various tactical advantages to the prosecution
admission of any statements of a conspirator against all others even if
otherwise, the statement would be inadmissible b/c of hearsay (co-conspirator
exception)
Often, the judge will allow it to be admitted at trial, subject to an instruction to
disregard evidence against all other Ds (which is not very effective)
Location - trial can be held where any overt act of the conspiracy took place, so
may hold it in a place that is more morally opposed to the conspiracy
Sometimes juries are more likely to convict everyone (they're all a bunch of
crooks)
Was possible to prosecute for conspiracy to commit an act that would not be
criminal by an individual act, but would be tortious and would be done by a
group - this has been limited a lot though
Pinkerton Doctrine - allows a conspirator to be held liable for any substantive
crimes committed by any of the other conspirators w/o having to satisfy the
usual rules of accomplice liability - instead of proving X intentionally aided Y, just
have to say X and Y were members of a conspiracy and Y committed some crime
in the furtherance of that act (see below)
- BUT could result in confusing a jury (many people, months of trial, confusing
connections - too much!)
- **Conspiracy comes into play MUCH earlier than the crime of attempt - once the
agreement occurred (or once the agreement plus one step), the crime of conspiracy
has been committed**
- Pinkerton doctrine - If a conspirator commits any crime, then all the other
conspirators are accomplices, as long as the crime is in furtherance of the conspiracy
and is foreseeable (does not have to be within the scope of the original conspiracy)
This goes beyond the natural and probable consequences rule of accomplice
liability, b/c it is easier to prove that someone is a conspirator (agreed) than that
someone is an accomplice (intentionally aided or encouraged w/ intent that the
crime be accomplished) - conspirator does not have to be present or even aware
that the crime is occurring, as long as it is in furtherance of the conspiratorial
goal
If a coconspirator has a personal defense, you could be convicted that crime as
an accomplice (so, you won't be convicted of a higher level of crime)
Would have to prove that the additional crime was a "frolic of his own" to not be
held liable for it
- The actus reus of conspiracy is the agreement itself
This can be proved by circumstantial evidence - even if no direct proof of
agreement, everyone is acting in coordination with each other - implies that
there was an agreement - the agreement can be indirect, but there should be
proof beyond a reasonable doubt (theater case was enough, mafia case was not)
Each conspirator does not need to know every detail or even every person
involved - just the gist
Gang members are not automatically part of a conspiracy when any gang
member is convicted of a crime
If you argue that there was no agreement, that is a failure of proof defense burden on the prosecution - seems pretty easy to convict someone of conspiracy
- The mens rea of conspiracy has two parts:
1) Intent to agree
Crim Outline Page 11

1) Intent to agree
Hard to distinguish between the act and the intent here
2) Intent to commit the target offense/to achieve the unlawful goal
You cannot convict someone of conspiracy to commit a crime that has a
mens rea of recklessness or negligence - you cannot agree (plan) to be
reckless or negligent
What is meant by Intent?
Purpose and Knowledge if the crime is not serious.
Knowledge if the crime is serious enough.
Can a person be guilty of conspiracy for knowingly providing services that
are used to commit misdemeanors when he has not stake in the venture?
Knowledge is not enough. Needs to be combined with Actual
purpose and intent of furthering the criminal venture.
Possible proof of intent of furthering:
A financial stake in the venture- selling goods for a
higher price to criminals.
no legitimate use for the goods or services (the
business is dependent on furnishing criminals)
and an unusual volume of business not
proportionate to any legitimate demand.
Or by the aggravated nature in the crime of itself.
o If the crime is serious enough, the knowingly
supply something in the furtherance of a the
crime is construed as intended to further
the crime.
o What is serious enough?
o Case-by-case basis (Lauria)
MPC: along with other states: strictly require both Knowledge and
Purpose for a conspiracy offense.
Mens rea for circumstance elements:
If the conspirators were already planning on committing a crime, then
they will be held liable if the circumstances made it a more severe crime
If the circumstances themselves made it a crime (ex - age and statutory
rape), the MPC leaves it to the courts to decide whether or not it should
be a conspiracy (unlike attempt, where it is the same mens rea as for the
completed crime), b/c it is easier to convict of conspiracy
- Scope of conspiracy (ONLY common law - will not be tested on MPC)
One big conspiracy is easier to convict than many small conspiracies
BUT, if you are convicted of many small conspiracies, you may end up with many
consecutive sentences - longer jail time
Wheel
Everyone was working independently and did not care if any of the other
spokes succeeded - then the hub is guilty of many small conspiracies with
each spoke, but the spokes were not conspirators w/r/t each other (ex fraudulent loans guy)
IF, the spokes care that the hub continues to exist and therefore wants to
other spokes to be involved as well, then they are all in one big conspiracy
(ex - abortion doctor)
Distinguish from the fence - the guy who buys the stolen goods there are lots of fences, so thieves don't care if other thieves use the
same guy - if he goes out of business, there are others to go to
Chain
When many steps must occur for the crime to be committed, it can be
called a chain (like drug sales - manufacturer to wholesaler to retailer to
customers, etc) - even if at the bottom of the chain are competing
salespeople, they can all be held to be in the same conspiracy with each
other
In common law, if someone thinks that they are in agreement (conspiracy) with
someone else, but the other person has not agreed, they cannot be convicted of
conspiracy
In MPC, they can (unilateral view)
In common law, they can still be convicted of solicitation to commit a
crime, even if the other person does not agree

Affirmative Defenses
1) Self defense:
- Generally seen as a justification defense
X is privileged to use force against Y if X:
1) Reasonably believes
Crim Outline Page 12

1)
2)
3)
4)

Reasonably believes
Such force is necessary against Y's
Imminent use of (unlawful) force
And the force X uses isn't excessive in relation to the threat
Can only use deadly force against deadly force, GBH against GBH, etc
Imperfect self defense (recognized by some states, not others - CA does)
- This is all of the above, EXCEPT the belief is Unreasonable - analogous to
provocation - it mitigates the degree - usually to voluntary manslaughter
Battered Woman's Syndrome
- Cycle: buildup, severe violence, apology and regaining of trust - creates
learned helplessness
- Expert testimony is admissible to bolster credibility of claim, explain why
the woman didn't leave, explain that she might have a better sense of the
degree of imminent harm from exposure to so many previous beatings,
explain that it really was as bad as she claimed
- Testimony is only used w/r/t reasonable belief - NOT reasonable belief of a
woman with BWS
What is imminent?
- IMMEDIATE
- May be a very narrow exception if the attack was coming in the near
future and law enforcement had failed to help you, but even then, people
have been convicted
Some states have a requirement to retreat if one KNOWS that he/she can do so
with COMPLETE SAFETY
- No one can outrun a bullet, so there is never a requirement to retreat
when attacked with a gun
- You do not have to retreat if you are in your own home
Some states have an exception that you do have to retreat If your
attacker is a co-occupant
INITIAL AGGRESSOR cannot use self-defense as a defense
- DIFFERENT COURTS RULE DIFFERENTLY ON WHAT CONSTITUTES AN
INITIAL AGGRESSOR - some say words are enough, others say they aren't
- Usually initial aggressor is a question of fact for the jury
- A man who was guarding a stash of drugs and killed robbers to protect
was held to be an initial aggressor (at fault in creating the situation)
- Can be a break in the chain if the initial aggressor abandons the attack and
communicates that verbally, but strict courts can still hold that he created
the situation in the first place, so still can't use self defense
- If the initial aggressor is met with disproportionate (deadly) force and then
kills in self defense,
Some courts hold that the aggressor must make a retreat if he can
do so - if he can't, then can use self defense, but if he can and he
doesn't will be manslaughter
Others say he can use self defense regardless, b/c the deadly force
can be seen as the initial aggressor at that level which has to be
protected against - this is the MPC's holding

MPC:
Cannot use self-defense if the defender provoked the attack in the same
encounter
Cannot use self defense if you KNOW that you can retreat WITH COMPLETE
SAFETY
Do not have to retreat if you are at home or at work UNLESS:
You provoked the attack
Or you are being attacked at work by someone you know also works
there
A police officer performing his duties does not have to retreat
Belief of necessity of self defense is determined by the actor in the
circumstances as he believes them to be
BUT, IF a person believes that use of force on another person is necessary for
self defense, but the actor is reckless or negligent in having this belief, then he
loses the defense against any charge for which recklessness or negligence is the
required mental state
An unreasonable belief would get negligent homicide

2) Necessity/choice of evils defense

- Generally seen as a justification defense
Common law requirements of the defense of necessity
1) Situation threatening imminent harm unless law is broken (or at least defendant
must reasonably believe that there is such a situation)
2) D isn't at fault in bringing about situation

Crim Outline Page 13

2)
3)
4)

D isn't at fault in bringing about situation

Harm avoided by lawbreaking is greater than harm produced by lawbreaking
Legislature hasn't already balanced the competing values adverse to D
Also, an archaic requirement not found in statutes today that situation must be
due to natural forces (generally, not still required)
Some state require that the situation actually be that way
Others require a reasonable belief
MPC requires an honest belief - if the belief is reckless or negligent, cannot be a
defense to crimes that have reckless or negligent culpability requirement
Also, MPC dies not require that D not be at fault in bringing about the situation,
BUT, if created the situation recklessly or negligently, then cannot be a defense
to crimes that have a reckless or negligent culpability requirement
The law that defines the crime of escape could be looking at the general
prevention of ppl waltzing out of prison and preventing more crime - murders,
rapes, etc - all of that balanced against that one person's life is different from
the one person's escape balanced against their life - code makes this unclear (pg
801) - there is no answer as to which harm is greater
A prisoner who escapes and wished to do a choice of evils defense can do so,
provided:
1) Specific threat of death/GBH in immediate future
2) No time to tell authorities OR history of futile complaints
a) This ignores the fact that snitches often suffer retaliation
3) No opportunity to go to courts
4) No force/violence to staff or other innocents
5) D turns self in at once upon reaching safety
a) Even if the person turns themselves in, if they come back to the
prison, the threat remains - EVEN in other prisons, there is a
grapevine and the threat could follow you
Some cases have held that these should be factors to be weighed by the
jury and not preconditions to sending it to the jury in the first place
Necessity defense is only allowed for killing in rare instances
MPC: two mountain climbers - allowed to cut the rope if both will die
Flood coming - breach dam that kills family, but saves town
Dudley and Stevens were not allowed to use necessity defense when they
killed and at the cabin boy
Imminent death was not as immediate there
Also, there was no double effect - it is always wrong to deliberately
kill an innocent person. However, it is sometimes permissible to
take action which you foresee will cause the death of an innocent
person, but that's not what you're intending. They intended
specifically to kill him (so they could eat him)
MPC takes a very simplistic approach - when it comes to lives, all
that is important is the number of lives - you must kill fewer than
you save
BUT, a surgeon cannot kill one healthy person to use their organs to
save 5 sick people - no joint venture
MPC says the life of every individual must be taken to be of equal
value (age, fragility, etc doesn't matter)
BUT, for self defense, you can kill all of your attackers to save
yourself, even if the net loss of life is greater (but if there is an
innocent bystander, then you have to count the number of innocent
lives saved v. lost)
Common law sometimes encourages drawing lots if you must
choose which lives to save

3) Duress
- Excuse defense
D was coerced into committing the crime by
1) An immediate or imminent threat (from another person)
2) Of death or at least great bodily harm to him/herself or another person
(particularly a relative)
3) The threat must be one that is reasonable to take seriously
4) It was traditionally not applicable to murder/the killing of an innocent person
MPC:
D was coerced by:
1) The use of or threat of the use of
2) Unlawful force
3) Against himself or someone else
4) Which a person of reasonable firmness in his situation would have been
unable to resist
Cannot recklessly place yourself in a situation where you might be put
Crim Outline Page 14

 Cannot recklessly place yourself in a situation where you might be put

under duress, and if you do so negligently, you will not have a defense to
crimes that have a required culpability of negligence
Also, you can use both duress AND necessity for the same defense in MPC
Necessity comes into play when natural forces bring about the
situation, and duress happens when another human being puts
them in that situation (usually)
BUT, Only duress can be used in a situation where it is NOT the
lesser of two evils (but since duress in common law precludes killing,
then it almost always IS the lesser of two evils)
Note: there is no immediate/imminent requirement w/ MPC
Defendant's situation? This is deliberately vague, but they say stark
tangible factors, like size, strength or age are considered - matters of
temperament are not
Mental disorder would still be considered temperament in this case
(but you could look into insanity or diminished capacity defenses)
Prison escapes:
Makes more sense to use necessity defense, b/c the threat that the prisoner felt
was not done with the intention of making them escape (the threatener did not
say escape from prison or I will rape/kill you)
BUT, as a necessity defense, it is a justification, thus giving immunity to all
accomplices and making it look like prison guards were trying to stop the
justified thing, so in that respect, duress is a preferable defense

4) Insanity
- Excuse defense
- Legal insanity is not the same as medical insanity
- Also, legal insanity is defined differently in different contexts:
Civil commitment (869) - a person is found by a court to be insane and is
remanded to a hospital
The definition of insane there is - mentally ill and in need of hospitalization
for one's own welfare or for the protection of others
Here, the burden of proof is on the state
The standard has to be at least clear and convincing evidence
- None of the above necessarily applies to insanity as an affirmative excuse defense
Insanity does NOT cancel mens rea automatically
But, sometimes a person who is insane doesn't realize what crime they are
committing and then they lack an intent to commit the crime - then there is a
lack of mens rea, but generally, this doesn't happen in real life - usually the
person (even if legally insane) does form the mental state required
- Insanity is rarely used as a defense and is even more rarely successful
- There is also a guilty but mentally ill alternative to the insanity acquittal
- Idaho, Montana, Kansas, Nevada and Utah have all abolished the insanity defense
BUT, they all say that you can still present evidence of the mental illness of the
defendant in trying to prove a lack of mens rea for the crime
Unconstitutional to abolish the insanity defense and NOT keep this part
SCOTA does not think that insanity defense is a fundamental right
- M'Naghten Rule: D is NGRI (not guilty by reason of insanity) if and only if at the time
of the act charged, D was suffering from some mental disease or defect as a result of
which one of two things occurred:
1) D didn't know the nature and quality of the act he was doing OR
2) D did not know that was he was doing was wrong
This is still often followed today
In most states, the burden is on the D to prove through a preponderance of
evidence
Mental disease/defect?
Does not include sociopaths
Otherwise, generally left to the jury to decide
Wrong?
Some courts hold this to mean morally wrong
Others say legally wrong
CA has gone both ways
- MPC/ALI: D is NGRI if at the time of such conduct, as a result of mental disease or
defect, D lacked substantial capacity
1) To appreciate the criminality [wrongfulness] of D's conduct OR
2) To conform his conduct to the requirements of law (irresistible impulse test)
In this area of law, (1) cognitive = knowledge and (2) volition = will
Problems w/ volitional prong - psychiatrists lack sufficient ability to make a fully
competent report on whether or not the person lacked substantial capacity - risk
of fabrication and mistakes are greatest when asking experts to speculate - likely
to confuse jurors
Crim Outline Page 15

to confuse jurors
Also, what is SUBSTANTIAL? Hard to say
- Feds for a while had the above test, but rather than lacked substantial capacity, was
just
1) Did not know it was wrong OR
2) Was unable to follow the law (irresistible impulse test)
Problem: how do you know when the person was unable to control themselves
(vs. just didn't control themselves)
- The product test for legal insanity or the Durham test:
A person charged with a crime is not criminally responsible for their conduct if
their conduct was a product of the defendant's mental disease or defect
NH has always had this, but became popular when DC Circuit adopted it (but has
since dropped it)
Problem: puts too much reliance on expert psychiatric testimony (which changes
based on classifications/definitions, etc)
No standard as to how to relate conduct to mental disease/defect
Put burden on prosecution to rebut - to difficult
Also, allowed for but-for causation, which sometimes isn't a close enough
link
- US v Lyons eliminated the volitional prong and only kept the cognitive prong

5) Diminished Capacity
- There are two defenses that get labeled diminished capacity
1) Failure of proof defense
Allows evidence of mental infirmity, disease impairment that may not rise
to the level of legal insanity, but may show that the D did not have a
required mental state for the crime
Either was incapable of developing that mental state or simply did
not have it at that time b/c of other circumstances
Common law (most states) only allows for specific intent crimes
(In specific intent crimes, usually there is still a lesser included crime
that the person can be convicted of - ex - not guilty of burglary, but
guilty of breaking and entering)
MPC allows for all crimes
CA abolished the diminished capacity defense
BUT, you can still use mental infirmity as evidence that the person
did not have the requisite mens rea - just can't use it as proof that
the person was UNABLE to form the requisite mens rea
AZ also does not allow the diminished capacity defense
They won't allow psych testimony for diminished capacity, but they
will for insanity defense
SCOTA says that's OK - not a violation of due process, b/c
- Just b/c certain evidence is relevant doesn't mean that it is
admissible (unreliable, could mislead a jury - ex can't
introduce evidence that a person had committed the crime
several times in the past)
1) There is a lot of disagreement about mental illness - how to
classify conditions, etc - even among the psychiatric
profession - it's debatable
2) There is a potential for misleading the jury - even if you have
an accepted mental disease that the person has - the
classification may suggest something about the D's ability to
have a mental state and the jury may put more emphasis on
that than what it actually should - the disease might have
nothing to do with the mens rea of the crime
3) The risk that the weight of the expert testimony will be grossly
overestimated by the trier of fact
Insanity defense is less nuanced PLUS burden of proof is on D, while
lack of proof diminished capacity defense puts burden of proof on
prosecution
2) Affirmative defense
The defendant, though possessing all of the required mental elements,
was sufficiently impaired that he should not be held AS responsible for the
crime as the average crime (typically manslaughter instead of murder)
EXTREMELY disliked w/in the US - used more in Europe
MPC kind of has this through their extreme emotional disturbance (see
above) to reduce murder to maslaughter

Crim Outline Page 16