Criminal Law - Fairfax Fall 2010

Punishment and Proportionality

Greenawalts Characteristics of Punishment
- performed by, and directed at, agents who are responsible in some sense
- involves harmful or unpleasant consequences
- unpleasant consequences are preceded by a judgment of condemnation
- imposed by someone who has the authority to do so
- imposed for a breach of an established rule of behavior
- imposed upon an actual or supposed violation of this rule of behavior
Retributivism backward-looking, finds justification for punishment in the past;
grounded in notions of moral decency, based on the harm and culpability (greater harm
and intentional decision-making = greater punishment)
Utilitarianism forward-looking, looks for the future benefits that will derive from
punishing a person
- deterrence
- incapacitation
- rehabilitation
punishment itself is an evil according to utilitarians, because it deliberately inflicts harm
on a human being; therefore we should punish criminal only if some good is achieved
by this act
Theories of Punishment
Incapacitation (restraint) while imprisoned, a criminal has fewer opportunities to
commit acts causing harm to society
Special Deterrence punishment may deter the criminal from committing future crimes
General Deterrence punishment may deters others from committing similar crimes
Retribution punishment imposed to vent societys sense of outrage and need for
revenge
Rehabilitation imprisonment provides the opportunity to mold or reform the criminal
into a person who, upon return to society, will conform her behavior to societal norms
Education the publicity attending the trial, conviction, and punishment of some
criminals serves to educate the public to distinguish good and bad conduct and to develop
respect for the law.
Proportionality (Ewing v. California)
8th Amendment only prohibits extremely disproportionate sentences (i.e. three strikes is
fine as long as you justify it with policy states can do whatever policy they want)

Process and Prohibitions

Criminal Process
- begins when the legislature criminalizes something in the statute
- report, detection of, or suspicion that a crime has occurred
- investigation
- arrest

bail determination
charging decision (indictment by grand jury, or information (complaint in minor
cases)
- preliminary hearing judge determines if theres enough probable cause to
proceed
- discovery
- motions (suppression, dismissal)
- trial
- sentencing
Jury Nullification
Double Jeopardy clause no person shall be subject for the same offense to be twice
put in jeopardy
Jury may shield someone forever for some conduct state cannot appeal, and defendant
cannot be retried
- defendant admits charge (i.e. civil disobedience and jury acquits anyway)
- jury can nullify in favor of the government, but judge can still order acquittal and
the defendant still has access to appeals
Legality
No crime without law, no punishment without law
Statutory claims/vagueness
- legislative intent is to be ascertained by appropriate means and indicia, such as the
purposes appearing from the statute taken as a whole, the phraseology, the words
(ordinary or technical), the law as it prevailed before the statute, the mischief to
be remedied, the remedy, the ends to be accomplished, statutes in pari material,
the preamble, the title and other like means
- a criminal statute must be sufficiently definite to give notice of the required
conduct to one who would avoid its penalties, and to guide the judge in its
application and the lawyer in defending (In Re Banks, N.C. 1978)
Lenity/strict construction if after all attempts, the statute is still vague, and we have two
equally plausible interpretations, we should decide for the defendant and against the
government
Legality/no judicial crime creation (Keeler v. Superior Court, Cal. 1970)
Constitutional Limitations on Crime Creation
- No Ex Post Facto Laws, which operate retroactively to:
o Make criminal an act that when done was not criminal
o Aggravate a crime or increase the punishment therefore
o Change the rules of evidence to the detriment of criminal defendants as a
class; or
o Alter the law of criminal procedure to deprive criminal defendants of a
substantive right
- No Bills of Attainder, which are legislative acts that inflict punishment or denies
a privilege without a judicial trial
Effect of Repeal at common law, in the absence of a savings provision, the repeal or
invalidation of a statute operates to bar prosecution for earlier violations, providing the

prosecution is not yet underway at the time of repeal; repeal will not operate to set free a
person who has been prosecuted and whose conviction is res judicata.
Elements of a Crime
1) Actus Reus (guilty act): a physical act or omission by the defendant;
2) Mens Rea (guilty mind): the state of mind or intent of the defendant at the time of
his act
3) Concurrence: the physical act and the mental state existed at the same time; and
4) Harmful Result and Causation: a harmful result caused (both factually and
proximately)

Actus Reus
Without an act, there is no crime
Common Law
The defendant must have either performed
a voluntary physical act (bodily movement)
or failed to act under circumstances
imposing a legal duty to act.
- a thought is not an act
- speech, however, is an act that can
result in criminal liability
Voluntariness the act must be a
conscious exercise of the will
- as long as there is at least ONE voluntary
act in the defendants course of conduct, he
may be criminally responsible (i.e. driving
w/epilepsy)
Unvoluntary Acts:
1) conduct that is not the product of
the actors determination
2) reflexive or convulsive acts
3) acts performed while the defendant
was either unconscious or asleep
unless the defendant knew they
might become engaged in the
dangerous behavior
Omissions
A legal duty to act can arise from:
- statute (i.e. reporting an accident)
- contract (lifeguard, nurse)
- relationship between defendant and
victim (parent/child, spouse)
- voluntary assumption of care

MPC
MPC also requires a voluntary act, or an
omission where there is a legal duty
2.01 Requirement of Voluntary Act;
Omission as Basis of Liability;
Possession as an Act
(1) A 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.
Acts which are not voluntary include: (a)
reflex or convulsion; (b) bodily movement
during unconsciousness or sleep; (c)
conduct during hypnosis; (d) bodily
movement that otherwise is not the product
of the effort or determination of the actor,
either conscious or habitual.

Omissions, 2.01(3)(a)-(b)
Omission satisfies actus reus:
1) when statute defining the offense
expressly states that failure to act is a
crime; or
2) defendant has a duty to act imposed by
civil law.

- the creation of peril by defendant

- duty to control the conduct of another (i.e.
employee)
- landowner
Duty arises when defendant is aware of the
facts creating the duty to act, and it must be
reasonably possible for defendant to
perform the duty or obtain the help of
others in performing it.
Possession - is an act is defendant has
Possession a persons possession is
control of the object long enough to have
sufficient for criminal responsibility if,
an opportunity to terminate his possession, after becoming aware of an illegal
but he need not be aware of its illegality or possession, he does not terminate within a
true nature
sufficient period
- Criminal liability for an omission only attaches when theres a legal duty

Mens Rea
Intent and Willful Blindness
General Intent theres no mental state set out in the statute; assumption is you just
need a morally blameworthy or guilty mind
Specific Intent
Delaware: there is a specific mental state set out in the statute (statute specificity)
- Arizona: specific intent means purposely or knowingly, and general intent is the
lower mental states (higher/lower levels)
- New Jersey: specific intent is a mental state requirement over and above the
mental state required of the actus reus, and general intent is the baseline intent of
the actus reus (i.e. simple possession is general intent, and possession with intent
to distribute is specific intent) (more required)
- Major Specific Intent Crimes: solicitation (intent to have the person solicited
commit the crime), attempt (intent to complete the crime), conspiracy (intent to
have the crime completed), first-degree murder (premeditated intent to kill),
assault (intent to commit a battery), larceny and robbery (intent to permanently
deprive another of his interest in the property taken, burglary (intent at the time of
entry to commit a felony in the dwelling of another)
Transferred Intent when a defendant intends to harm one, and accidentally harms
another, the intent is transferred to the victim
- act must be completed for intent to transfer; cant have transferred intent for
attempt
- intent does not transfer from crime to crime, only person to person
Motive the reason or explanation underlying the offense is generally immaterial to the
substantive criminal act; distinct from the intent to commit a crime
Common Law
intent under the common law includes

MPC
2.02 General Requirements of

MPCs purposely and recklessly

- includes acts the actor wanted to occur,
and acts the actor knew were substantially
certain to occur (but didnt necessarily
want)

Culpability
(3) When the culpability sufficient to
establish a material element of an offense is
not prescribed by law, such element is
established if the person acts purposely,
knowingly, or recklessly.
- under MPC, a higher level of culpability,
if proven, can substitute for any lower level

Purposely. 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 the 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.
Knowingly. A person acts knowingly with respect to a material element of the 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.
Recklessly. A person acts recklessly 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,
considering the nature and purpose of the actors conduct and the circumstances known to
him, its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actors situation.
Negligently. A person negligently with respect to a material element of the offense when
he should be aware of a substantial risk that the material element exists or will result from
his conduct. The risk must be of such a nature and degree that the actors failure to
perceive it, considering the nature and purpose of his conduct and the circumstances
known to him, involves a gross deviation from the standard of care that a reasonable
person would observe in the actors situation.
Willful Blindness
Common Law
the establishment of knowledge is allowed
under willfull blindness
- some courts

MPC
2.02(7) Requirement of Knowledge
Satisfied by Knowledge of High
Probability
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.
- deliberate ignorance and positive knowledge are equally culpable (U.S. v. Jewell)

Strict Liability
A strict liability offense does not require awareness of all the factors constituting a crime.
The major significance is that certain defenses, such as mistake of fact, are not available
because there is no mens rea for them to negate
Common Law
MPC
public welfare offenses
2.05 rejects strict liability for crimes
- regulate dangerous of deleterious devices
- if a criminal statute imposes strict
or products, obnoxious waste materials
liability, it is transformed from a
- heighten the duties of those in control of
crime to a violation (no legal
particular industries, trades, properties or
disability or jail, only fines)
activities that affect public health, safety or
- if you can prove a mens rea, an
welfare
absolute liability offense can
- depend on no mental element, but consist
become a crime
only of forbidden acts or omissions
- typically carry minor penalties
- malum prohibitum conduct is only
wrong because the legislature says its
wrong (vs. malum in se crimes, which
should obviously be wrong to the
individual)
statutory rape and similar offenses
(where the element not requiring mens rea
will be an attendant circumstance)

Mistake of Law and Fact

Mistake of Fact
Common Law
General Intent Offenses
- Perkins rule: if no specific intent
or other special mental element is
required for guilty of the offense
charged, a mistake of fact will not
be recognized as an excuse unless it
was based upon reasonable grounds
- Blameworthiness is the standard for
intent, and a reasonable mistake is
not blameworthy only an
unreasonable mistake is sufficiently
blameworthy to prove general
intent
Exceptions:

MPC
Since MPC is obsessed with mens rea,
proving mistake of fact make you likely to
get off.
2.04 Ignorance or Mistake
(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 established a
material element of the offense; or
(b) the law provides that the state of mind
established by such ignorance or mistake
constitutes a defense.
(2) Although ignorance or mistake would

Moral Wrong Doctrine even if

mistake of fact was reasonable, may
defeat mistake defense (i.e. act was
still morally wrong)
- Legal Wrong Doctrine if mistake
of fact was still a legal wrong,
defendant may be convicted of the
more serious offense that his
conduct establishes (i.e. act,
regardless of mistake, was still
illegal)
Specific Intent Offenses
- a reasonable mistake of fact, or an
unreasonable mistake of fact, so
long as it is genuine, if it negates
the special mental element of the
offense, allows a mistake of fact
defense (People v. Navarro)
Strict Liability Crimes
- without a mens rea requirement, there is
nothing (no mental element) that a mistake
of fact can negate

otherwise afford a defense to the offense

charged, the defense is not available if the
defendant would be guilty of another
offense had the situation been as he
supposed. (Ignorance or mistake mitigates
to the alternate offense)

Mistake of Fact Flowchart (Common Law)

- is the offense general intent, specific intent or strict liability?
o If specific intent, does the mistake relate to the specific intent element?
If YES, determine whether the mistake negates the specific intent
elements (if so, not guilty)
If NO, treat the offense as a general intent offense
o If general intent, do culpability analysis:
Did the defendant act in a morally blameworthy way?
IF mistake was unreasonable, defendant is morally
blameworthy (and therefore culpable)
IF mistake was reasonable, defendant is not morally
blameworthy (and therefore, is not culpable, UNLESS
o Moral wrong doctrine applies, OR
o Legal wrong doctrine applies
o If strict liability, mistake is NOT a defense
Mistake of Law
Common Law
Mistake or ignorance of the law is no
excuse (People v. Marrero, N.Y. 1987)
Exceptions:
- when your mistake of law negates

MPC
Negation of mens rea
2.02(9) Culpability as to Illegality of
Conduct
Neither knowledge nor recklessness or

the mens rea element

- same law mistake generally not
a defense
Specific Intent
- different law mistake can be a
defense only for specific intent
crimes
General Intent + Specific Intent
- reasonable reliance relying on a
reasonable statement of law from a
responsible public official charged
with interpretation or enforcement
of the law
- fair notice (Lambert v. California,
1957) only applies to passive
conduct, not overt acts

negligence as to whether conduct

constitutes an offense or as to the existence,
meaning or application of the law
determining the elements of an offense, is
an element of such offense, unless the
definition of the offense so provides.
See also 2.04(1) (Mistake of fact, above)
- only if it negates mens rea
2.04(3) A belief that conduct does not
legally constitute an offense is a defense to
a prosecution for that offense based upon
such conduct when:
Fair Notice
(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
Reasonable Reliance
(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.
Defense under 2.04(3) must be proven by
preponderance of the evidence

Causation
Causation is only applicable for result
Actual Cause (Cause-in-fact)
- includes but-for causation a prohibited result would not have happened in
absence of the actors conduct
- substantial factor causation two or more independent actors commit separate
acts, each of which is sufficient to bring about the prohibited result

Proximate Cause (Legal Cause)

- involves intervening but-for occurrence after actors conduct, and prior to the
prohibited result
- unforeseen intervening acts can cut off causation, and include: act of God, act or
omission of victim or a third-party
- Negligence in medical treatment is not a superceding cause; it is a dependent
intervening force which is foreseeable response to defendants conduct (most courts hold
same result for victims refusal of medical care/treatment)
2.03 Causal Relationship Between Conduct and Result; Divergence Between
Result Designed or Contemplated and Actual Result or Between Probable and
Actual Result
(1) Conduct is the cause of a result when:
(a) it is an antecedent but for which the result in question would not have
occurred; and
(b) the relationship between the conduct and the result satisfies any additional
causal requirements imposed by the Code or by the law defining the offense
(2) When purposely or knowingly causing a particular result is an element of an offense,
the element is not established if the actual result is not within the purpose or the
contemplation of the actor unless:
(a) the actual result differs from that designed or contemplated, as the case may
be, only in respect that a different person or different property is injured or
affected or that the injury or harm designed or contemplated would have been
more serious or more extensive that that caused; or
(b) the actual result involves the same kind of injury or harm as that designed or
contemplated and is not too remote or accidental in its occurrence to have a just
hearing on the actors liability or on the gravity of the offense.
(3) When recklessly or negligently causing a particular result is an element of the offense,
the element is not established if the actual result is not within the risk of which the aware
or, in the case of negligence, of which he should be aware, unless:
(a) the actual result differs from the probable result only in the respect that a
different person or different property is injured or affected or that the probable
injury or harm would have been more serious or more extensive than that caused;
or
(b) the actual result involves the same kind of injury or harm as the probable
result and is not too remote or accidental in its occurrence to have a just bearing
on the actors liability or on the gravity of the offense
(4) When causing a particular result is a material element of an offense for which
absolute liability is imposed by law, the element is not established unless the actual result
is a probable consequence of the actors conduct.

Homicide
Hierarchy
Common Law

MPC

First-Degree Murder
- premeditated and deliberate
Second-Degree Murder
- malice aforethought, or extreme
recklessness (depraved heart)
Voluntary Manslaughter
- heat of passion/provocation
Involuntary Manslaughter
- criminal negligence, regular
recklessness

Murder
- purposely or knowingly, OR
recklessly under circumstances
representing an extreme
indifference to the value of human
life
Manslaughter
- recklessly or murder under extreme
mental/emotional distress
Negligent Homicide
- homicide committed negligently

Pre-Meditation
State v. Schrader (W.Va. 1982) - premeditation can be established in an instant, or
twinkling of an eye
State v. Guthrie (W.Va. 1995) 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
People v. Morrin (Mich.App. 1971) the interval of time between formation of intent
and the actual killing, to the Morrin standard requiring the time be long enough to subject
your response to a second look
- premeditation and deliberation is a process undisturbed by hot blood
Midgett v. State (Ark. 1987) if premeditation and deliberation was for a lesserincluded offense and not the eventual death, defendant can only be found guilty of the
lesser-included offense
State v. Forrest
Among the factors to be considered in determining whether a killing was with
premeditation and deliberation are:
- want of provocation on the part of the deceased
- the conduct and statements of the defendant before and after the killing
- threats and declarations of the defendant before and during the course of the
occurrence giving rise to the death of the deceased
- ill-will or previous difficulty between the parties
- the dealing of lethal blows after the deceased had been felled and rendered
helpless
- evidence that the killing was done in a brutal manner

Voluntary Killings
Between intentional and unintentional homicide, assume an intentional killing will be
murder

Common Law
First-degree murder
Premeditated and deliberate
Lying in wait, poisoning, killing someone
in the process of committing another felony
(felony murder), specific offense triggers
(arson, rape, robbery or burglary)
Second-degree murder
Plain old, classic murder is almost always
classified as second-degree murder
Malice Aforethought
- intent to kill (purposely or knowingly)
- intent to cause serious bodily harm
(purposely or knowingly)
- depraved heart murder (an unintentional
killing)
- intent to commit a felony (felony murder
doctrine)
Voluntary Manslaughter
An intentional homicide, done in the heat
of passion, caused by adequate
provocation, before there has been
reasonable opportunity for the passion to
cool
Rule of Provocation
- there must have been adequate
provocation
- the killing must have been in the heat of
passion
- it must be a sudden heat of passion the
killing must have followed the provocation
before there has been a reasonable
opportunity for the passion to cool
- must be a causal connection between the
provocation, the passion and the fatal act
Traditional Categories of Adequate
Provocation
- discovering ones spouse in the act
of sexual intercourse with another
- mutual combat
- extreme assault and battery upon
the defendant
- resisting an illegal arrest
- injury or grievous abuse of a close

MPC
210.1 Criminal Homicide
(1) A person is guilty of criminal homicide
is he purposely, knowingly, recklessly or
negligently causes the death of another
human being.
(2) Criminal homicide is murder,
manslaughter, or negligent homicide.
210.2 Murder
(1) Criminal homicide constitutes murder
when:
(a) it is committed purposely or knowingly;
or
(b) 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
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.
210.3 Manslaughter
(1) Criminal homicide constitutes
manslaughter when:
(a) it is committed recklessly; or
(b) 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
actors situation under the circumstances as
he believes them to be.
Words alone are sufficient provocation
under the MPC to get a jury instruction for
manslaughter

relation (child, spouse)

- sudden discovery of a spouses
adultery
Movement in the law is away from
traditional categories of provocation, and
toward leaving it to the jury under a
reasonable man standard
Words, no matter how abusive or taunting,
do not constitute adequate provocation for
mitigation of murder to manslaughter
- exception: informational words
accompanied by conduct indicating a
present intention and ability to cause the
defendant bodily harm

Involuntary Killings
Common Law
Depraved Heart Murder (Second-Degree
Murder)
Express malice deliberate
intention unlawfully to kill (or
cause grievous bodily injury)
Implied malice killing with
abandoned and malignant heart, or
in the absence of provocation
Depraved heart murder, in the end, has
nothing to do with good or evil just
conscious disregard of a risk representing
an extreme indifference to the value of
human life (aka extreme recklessness)
- even a small risk of death can be
depraved heart murder if there is no
justification for the risk
If you have justification, it can show that
youre not indifferent to human life.
However, even a small risk can be
depraved heart if theres no justification.
Involuntary Manslaughter
Criminally negligent or reckless acts
leading to death
- Criminal/Gross Negligence so gross
that a jury would find punishment
appropriate, in addition to damages in the
civil context of negligence

MPC
210.2 Murder
(1) Criminal homicide constitutes murder
when:
(b) 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
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.
210.4 Negligent Homicide
(1) Criminal homicide constitutes negligent
homicide when it is committed negligently.

Felony Murder
Common Law
MPC
All murder committed in the perpetration
MPC rejects the felony murder rule, but it
of, or attempt to perpetrate a felony (or
still exists in the common law or by
enumerated felonious acts), is murder of
statutory enaction
the second-degree
210.2(1)(b) robbery, rape, deviate sexual
- by charging felony murder, you
intercourse (by force or threat of force),
dont have to prove mens rea with
arson, burglarly, kidnapping, or felonious
regard to the killing (just intent to
escape
commit the felony)
- you MUST be guilty of the
underlying felony
Can be made first-degree murder by statute
- Deterrence as a rationale for the felony murder rule want to deter unintentional
killings, not the associated crimes in and of themselves
Limitations on the Felony Murder Rule
- inherently dangerous felony
- independent felony (merger)
o if the triggering charge is an assault, you cant use the underlying
assaultive conduct to get felony murder underlying felony is
unquestionably an integral part and included in the face of the homicide
o if there is a separate purpose over and above the assaultive conduct, the
merger bar to the felony murder rule doesnt apply
- you cant be held liable for actions of an innocent party (such as law
enforcement), as you can with accomplices or co-felons (State v. Sophophone)
Res Gestae doctrine
- even if the felony is over, felony murder can be charged if death occurred in escape and
its one continuous sequence of events (Foller v. State, State v. Sophophone)

Rape and Sexual Assault

Force and nonconsent are the key concepts of law in rape
Common Law
MPC
Blackstone the carnal knowledge of a
213.1 Rape and Related Offenses
woman forcibly and against her will
(1) Rape. A male who has sexual
intercourse with a female not his wife is
Actus Reus
guilty of rape if:
- Intercourse
(a) he compels her to submit by force or by
- Force, either actual or constructive
threat of imminent death, serious bodily
- Nonconsent and/or against the will of the injury, extreme pain or kidnapping, to be
victim
inflicted on anyone; or
(b) he has substantially impaired her power
Modern legislative trend is to use the
to appraise or control her conduct by

phrase forcible compulsion - combining

force and consent elements into a single
phrase
Mens Rea
Generally a general intent crime need
moral culpability or blameworthiness
- some jurisdictions require purposefulness
of nonconsensual sex or recklessness with
regard to consent

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.
Resistance Requirement
MPC doesnt have a resistance
requirement.

Resistance Requirement
Mistake as to Consent
Originally anything less than deadly force
- defendant must be at least reckless
had to be met with extreme resistance
as to the question of whether the
(Rusk v. State)
victim consented
Has been diluted and is falling into disfavor
- if you can only prove negligence as
to consent, you cant get a rape
Mistake of Fact
conviction under MPC (see 213.1,
- general intent reasonable mistake of fact
2.02(3))
may negate mens rea
- not specifically addressed in MPC,
- specific intent reasonable or
but nonconsent is implied in
unreasonable mistake of fact may negate
compulsion
mens rea
- common law rules are beginning to erode,
with some jurisdictions moving away from
accepting a reasonable mistake defense
with regard to consent

Force
Either physical force, or threats of serious bodily harm which would reasonably construe
fear (aka constructive force)
Nonconsent itself is not force (Commonwealth v. Berkowitz)
Threats of force must be specific to the rape, not to prior acts (State v. Allston)
Determination of forcible compulsion factors:
- ages of victim and accused
- mental and physical conditions of the victim and accused
- atmosphere and physical physical setting of an alleged incident
- position of authority of accused
- domination or custodial control of victim
- whether victim was under duress

Consent and Withdrawal

Consent
Consent is a complete defense to rape
Consent induced by violence or is not consent

Prior consent is not in effect for the instant act of intercourse

Withdrawal of Consent
People v. Vela (1985) its not rape if the initial penetration is consensual
- essence of rape is the outrage of a nonconsensual violation of her womanhood,
and that doesnt exist if consent is withdrawn and THEN force is used
People v. Roundtree (2000)
- withdrawal of consent effectively nullifies any earlier consent and subjects the
male to forcible rape charges if he persists in what has become nonconsensual
intercourse
Common Law Rule
- if consent is withdrawn after penetration, its not rape
- person can be and often is guilty of another sexual assault offense or a battery

Social Context and Law Reform

Rape Shield Laws
- Prior sexual history of the claimant with someone other than the defendant may
not be admitted, other than to show the source of semen, pregnancy or disease
Force Requirement Abandonment
- nonconsensual sex is forced sex, regardless of whether there is resistance
Marital Immunity
Marriage is implied consent to intercourse (a husband cant rape his wife)
- woman is property of her husband, has no separate legal identity
- protects against government intrusion into the realm of marriage
- deters divorce
- difficult to prove, danger of false accusations
- policy-wise, just isnt as big of a deal as stranger rape

Rape by Fraud and Statutory Rape

Fraud in the Factum
Vitiates consent
- situations where the victim thought they were consenting to marital sex are fraud
in the factum rather than fraud in the inducement (Boro v. Superior Court)
Fraud in the Inducement
Does not vitiate consent deception relates not to the act done, but the reason or
circumstances (Minkowski, Boro)
Statutory Rape
Historically not gender-neutral most originally only outlawed sex with an underage
female, but today that has changed dramatically
Strict liability crime; no mens rea required
- reasonable mistake is not a defense because theres no mens rea for it to negate
Most jurisdictions have an age range for the statutory trigger at around 16 years old

Theft
Common Law
Larceny
Trespassory taking and carrying away of
personal property of another with intent to
steal
- the slightest carrying away will
suffice

MPC

Claim-of-Right Doctrine
A person is not guilty of larceny if they
reasonably believe the property belongs to
them, or that they have a legal right to
claim it
- breaking down in terms of robbery for
debt collection
Robbery
Larceny from a person by means of
violence or intimidation
Embezzlement
Unlawful conversion of property in a
nontrespassory manner
- typically a breach of trust
False Pretenses
Obtaining possession and title to property
by false representation or fraud

Defenses
Failure of Proof
An element of the crime is negated
- each and every element must be proven beyond a reasonable doubt
- if mistake of fact negates mens rea, you have a failure of proof defense
Offense Modification
Background rules exculpate defendant, even though each element could have been
sufficiently proving
- i.e. paying ransom in a kidnapping is aiding and abeting
Public Policy
Statutes of limitations, immunity, incompetency, etc.
- resource constraints, evidence degrades, witnesses memories fade

Finality
- we want criminal matters to end; cant continue to litigate forever
Justification
All elements are proven, including the social harm, but the social harm is somehow
outweighed by either a greater social interest or avoidance of a greater social harm
- self-defense they committed the crime, but did nothing wrong
Excuse
All elements are established, social harm not only present but not outweighed or negated;
however, we decline to impose criminal liability because we think theyre not
blameworthy in the moral sense
- insanity
Affirmative Defenses
Prosecution has the sole burden of proof in criminal cases. However, for affirmative
defenses, defendant must establish a prima facie case that the requirements of the defense
exist. Burden of proof for the elements of the crime, however, does not shift.

Self-Defense
Common Law
Threat
- actual or apparent
- unlawful
Unlawful use of deadly force
Imminent peril of death or bodily harm
respond to the threat
Necessity
Objectively reasonable belief of necessity

MPC
3.04 Use of Force in Self-Protection
(1) Use of Force for Protection of the
Person. the use of force upon or toward
another person is justifiable when the actor
believes that such force is immediately
necessary for the purpose of protecting
himself against the use of unlawful force by
such other person on the present occasion.

Necessity
Right of self-defense arises when necessity
begins and disappears when it ends

- imminency is not the timing of the

threat itself, but the timing of the
necessity to act

Clean Hands Doctrine

Generally must be fault-free to benefit from
self-defense
Exceptions
An aggressor can regain their right to use
self-defense if:
- the aggressor has already
withdrawn in good faith and
communicated that desire to the
other party
- if the victim of a minor fight
escalates into deadly force without
giving the aggressor a chance to

(2) Limitations on Justifying Necessity for

the Use of Force
(a) The use of force is not justifiable under
this Section:
(i) to resist an arrest that the actor knows is
being made by a peace officer, although the
arrest is unlawful; or
(ii) to resist force used by the occupier or
possessor of property or by another person
on his behalf, where the actor knows that
the person using the force is doing so under
a claim of right to protect the property
(b) The use of deadly force is not justifiable

withdraw

under this Section unless the actor believes

that such force is necessary to protect
Rule of Retreat
himself against death, serious bodily harm,
You must retreat to the wall no defense kidnapping or sexual intercourse compelled
is available if you have a safe attempt to
by force or threat; nor is it justifiable if:
retreat and did not attempt it before striking (i) the actor, with the purpose of causing
back with deadly force
death or serious bodily injury, provoked the
Exceptions
use of force against himself in the same
- Avenue of retreat is/appears unsafe encounter; or
- Castle doctrine/stand your ground
(ii) the actor know that he can avoid the
laws
necessity of using such force with complete
There is no rule of retreat for nondeadly
safety by retreating or surrendering
force, even if retreat would result in no
possession of a thing to a person asserting a
further harm to either party.
claim of right thereto or by complying with
a demand that he abstain from any action
Proportionality
that he has no duty to take, except that:
Deadly force may not be used to repel a
(1) the actor is not obliged to
non-deadly attack
retreat from his dwelling or
place of work, unless he was
the initial aggressor or is
assailed in his place of work
by another person whose
place of work he knows it to
be; and
(c) A person employing protective force
may estimate the necessity thereof under
the circumstances as he believes them to be
when the force is used, without retreating,
surrendering possession, doing any other
act which he has no legal duty to do or
abstaining from any lawful action.
Defense of Property
You may not use deadly force to protect personal property.
Defense of Habitation
Deals largely with the time of entry into the home; distinct from castle doctrine.
At the time of entry, one is able to use deadly force to repel an intruder or invader
- some jurisidictions limit defense of habitation to cases where the intruder is
intending to commit certain felonies; others require that the intruder be a threat to
the actor or other occupants of the home
Once the intruder is in the house, we revert to a self-defense analysis.
- Doctrine concerned more with homeowners ability to ascertain the risk, rather
than halting a continuing invasion of privacy
- Once theyre in, you have the ability to ascertain their level of threat to you and
react accordingly restrictions on self-defense now apply

Defense of Others
Right parallels the right a person wouldve had for themselves
One may use force in defense of any other person (without any special relationship
requirement) if the defendant reasonably believed that the other party had the legal right
to use force in their own defense.
Crime Prevention
Usually claimed by police, or private persons working with police
Deadly force cannot be used to prevent a misdemeanor.
Majority limit deadly force to very serious felonies; minority allow it for any felony
Battered Womens Syndrome
Confrontational Homicides self-defense is generally available
Nonconfrontational Homicides jurisdictions are split on whether self-defense is
available
Hired-Gun Homicides generally not available
Imperfect Self-Defense
You dont get a complete acquittal, but you do get some mitigation or relief
- BWS, deadly force in response to a nondeadly assault, defendant was aggressor or
provoker
Transferred Intent and Innocent Bystanders
If you miss the aggressor and kill an innocent bystander, transferred intent typically keeps
self-defense available

Necessity and Duress

Necessity
Necessity is a justification defense all elements of the crime are established, and there is
social harm, but its outweighed by a greater social benefit
Common Law
MPC
Rationale:
3.02 Justification Generally: Choice of
- act mustve been done to prevent a
Evils
significant evil
(1) Conduct that the actor believes is
- no adequate alternative
necessary to avoid a harm or evil to himself
- the harm caused is not
or another is justifiable, provided that:
disproportionate to the harm
(a) the harm or evil sought to be avoided by
avoided
such conduct is greater than that sought to
be prevented by the law defining the
Common law only recognizes necessity
offense charged; and
where there is a non-human cause (i.e. Act (b) neither the Code nor other law defining
of God)
the offense provides exceptions or defenses
dealing with the specific situation involved;
Test is objective a good faith belief in the and
necessity of ones conduct is insufficient
(c) a legislative purpose to exclude the

Defense is not available if defendant is at

fault in creating the situation which
requires choice between evils.

justification claimed does not otherwise

plainly appear.
Test under necessity is a subjective test if
you had a genuine belief you were
outweighing the harm, the jury find you not
guilty
(2) When the actor was reckless or
negligent in bringing about the situation
requiring a choice of harms or evils or in
appraising the necessity for his conduct, the
justification afforded by this Section is
unavailable in a prosecution for any offense
for which recklessness or negligence, as the
case may be, suffices to establish
culpability.

Duress
Duress is an excuse defense all elements are proven, and social harm is not outweighed,
but we do not believe they are morally culpable
- the distinction is that criminal acts performed under duress are only condoned by
society, rather than encouraged as under necessity
Common Law
MPC
Elements
2.09 Duress
- immediate threat of death or serious (1) It is an affirmative defense that the actor
bodily injury
engaged in the conduct charged to
- a well-grounded fear that the threat constitute an offense because he was
will be carried out
coerced to do so by the use of, or a threat to
- no reasonable opportunity to escape use, unlawful force against his person or
the threat of harm
the person of another, that a person of
reasonable firmness in his situation would
A threat to property will not suffice it
have been unable to resist.
must be a threat to a person, specifically a
(2) The defense provided by this Section is
threat of death or serious bodily injury.
unavailable if the actor recklessly placed
himself in a situation in which it was
Exceptions
probable that he would be subjected to
- Clean Hands doctrine applies
duress. The defense is also unavailable if he
- Duress is not a defense to murder or was negligent in placing himself in such a
any intentional killing
situation, whenever negligence suffices to
establish culpability for the offense
Duress is only a defense if the coercive
charged.
agent is a human (not an act of God
thats necessity)
- under the MPC, there is no limitation to non-homicide context, and the threat
need be neither deadly nor imminent

the threat, or use of force, must be directed at a person, not at property, under
either scheme
the coercion must come from a human, and not from nature, under common law
and the MPC

Duress can be deployed can be deployed in situations where necessity is unavailable,

such as in situations where the social harm is not outweighed
o also can be applied where equal harm results, or for harms whose balance
is incalculable

Insanity and Diminished Capacity

Insanity
Insanity is an excuse defense
Procedural Overview
Competency Hearing
- Pretrial determination is the defendant competent to stand trial?
o Not an insanity determination re: the actual offense
o Due process interests in the defendant meaningfully participating in their
own defense
- Pretrial notice of the insanity defense
o Must give notice prior to trial
o Insanity is treated as an affirmative defense
o Verdict of not guilty by reason of insanity often triggers civil commitment
proceedings
Why do we excuse for insanity?
- lack of requisite mens rea
Insanity Tests (MNaghten/MPC rules are dominant in the U.S.)
MNaghten Rule
A defendant is entitled to an acquittal if the proof establishes that:
a) a disease of mind
b) caused a defect of reason
c) such that defendant lacked the ability at the time of his actions to either
i. know the wrongfulness of his actions
ii. understand the nature and quality of his actions
It is irrelevant that the defendant may have been unable to control himself and avoid
committing the crime loss of control because of mental illness is no defense in
MNaghten jurisdictions if the defendant still knew of the wrongfulness of his act
- MNaghten test focuses on cognitive (intellectual) capacity, not emotional maturity.
Irresistible Impulse/Control Test
Because of mental illness the defendant was unable to control his actions or to conform
his conduct to the law; your mind cannot control your actions
Durham Product Test
Excuses criminal conduct that is the product of mental illness or defect
A crime is a product of the disease if it wouldnt have been committed but for the disease

Intended primarily to give psychiatrists greater liberty to testify concerning the

defendants mental condition
MPC 4.01
A person is not responsible for criminal conduct if at the time of such conduct as a result
of mental disease or defect he lacks substantial capacity (cognitive prong) either to
appreciate the criminality of his conduct or to conform his conduct to the requirements of
law (volitional prong)
- the defendant may know something is wrong without appreciating that its wrong
this is a looser standard than MNaghten
Diminished Capacity
As a result of mental defect short of insanity, defendant did not have the particular mental
state required for the crime charged
Mens rea variant
- failure of proof defense
o evidence of mental abnormality negates the requisite mens rea (for
specific intent offenses)
o may not succeed for general intent and strict liability offenses, but some
jurisdictions allow the defense for any kind of offense
- majority approach to diminished capacity
Partial responsibility variant
- government has proven mens rea and all other elements of the crime

Intoxication, Infancy and Background/Cultural Defenses

Voluntary Intoxication
Intoxication is voluntary (self-induced) if is it the result of the intentional taking without
duress of a substance known to be intoxicating; the person need not have intended to
become intoxicated
Generally not a defense to criminal liability, unless it can negate specific intent (as a
failure of proof defense)
- not available if defendant purposely became intoxicated in order to establish the
defense
Under MPC, if recklessness is an element of the crime, the MPC would permit using
voluntary intoxication to negate it, because the act of drinking is sufficiently reckless
Involuntary Intoxication
Rare, but generally a good defense to all criminal liability
Coerced Intoxication duress, true coercion (very rare)
Pathological Intoxication special susceptibility to intoxication
Intoxication by Innocent Mistake unexpected
Grounds for dismissal
- failure of proof/negation of mens rea
- temporary insanity (doesnt carry civil commitment weight of a general insanity
plea)

Infancy
Juvenile Adjudication
- under 7 infancy defense bars conviction
- over 14 no infancy defense
- between 7-14 rebuttable presumption that child does not have cognitive capacity
to distinguish right from wrong
Other available juvenile defenses: insanity, mental retardation, intoxication
Rotten Social Background
Doesnt have freestanding validity, but sneaks in through other doctrines

Inchoate and Group Crimes

Attempt
Incomplete Attempt actor is somehow prevented from completing the desired act, and
does not get to everything he intended to do
Complete Attempt actor is somehow prevented from producing the intended result,
even though he does every act planned
Common Law
Mens Rea Dual Intent
1) intent to perform the actus reus
2) the specific intent to commit the
underlying crime
Actus Reus an overt act in furtherance of
that intent
Traditional proximity test how close
defendant came to completing the offense
Majority/ MPC test substantial step
Attempt is typically punished under the
same grade of crime, but less serious, than
the offense attempted
There is no such thing as attempted felony
murder (except in Florida)

MPC
5.01 Criminal Attempt
(1) Definition of Attempt. A person is guilty
of attempt to commit a crime if, acting with
the kind of culpability otherwise required
for the commission of the crime, he:
(a) purposely engages in conduct that
would constitute the crime if the attendant
circumstances were as he believes them to
be; or
(b) when causing a particular result is an
element of the crime, does or omits to do
anything with the purpose of causing or
with the belief that it will cause such result
without further conduct on his part; or
(c) purposely does do 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.
MPC treats attempt the same as the
underlying offense, both in grade and
degree

There is no such thing as attempted

manslaughter because 5.01 requires
purpose or belief that a result will occur
(cant use recklessly or negligently)
attempt to commit negligent crimes is logically impossible
attempt to commit strict liability crimes is possible because defendant must act
with the intent to bring about the proscribed result

Distinction Between Preparation and Attempt

- mere preparation itself, unless it violates the law on its own, is not against the law and
does not constitute attempt
Physical Proximity Test close or immediate access to the completed crime
Dangerous Proximity Test nearness or the danger and the greatness of the harm
Indispensable Element Test something that is necessary to the commission of the crime
has been obtained
Probable Desistance Test - likelihood that the actor wouldve probably desisted on their
own
Abnormal Step Test average citizen would think this step went too far
Res Ipsa Loquitur/Unequivocality Test persons actions manifest their intent (past the
point of deciding whether to do something; its a go)
Factual Impossibility not a defense to attempt; crime couldve still been committed if
you fix your mistake (i.e. Gary Coleman/stabbing with a fake knife)
Pure Legal Impossibility is a defense to attempt
no law prohibiting the conduct (even if you thought it was illegal) (i.e. right turn on red)
Hybrid Legal Impossibility still have a crime society wants to punish, and an actor
seeking to break the law, but a factual mistake about an attendant circumstance made it
not a crime (if facts were as the actor thought, it wouldve been a crime and it wouldve
been possible for the actor to commit it, but theoretically its impossible (i.e. trying to
bribe a juror, but that person isnt a juror)
Abandonment
Most jurisdictions have rejected the defense of abandonment
MPC 5.04(1) Renunciation of Criminal Purpose you must have a complete and
voluntary change of heart (not because youre afraid of getting caught, motivated by a
change in circumstances, or to attempt at a better time)
Defenses to Attempt Liability
1) Impossibility
Pure Legal Impossibility is always a defense arises only when the defendant did, or
intended to do, acts that would not constitute a crime under any circumstances (i.e. shoots
off fireworks believing they are illegal, but theyre not)
Factual Impossibility is no defense it would have been factually impossible for
defendant to complete her plan even if she did all the things she intended to do (i.e.
attempts to rob someone with no money)

Assault and Solicitation

Assault
Common Law
Intentionally subjecting another to
reasonable apprehension of receiving a
battery
Proximity required for assault is even
closer than that of attempt

Solicitation
Common Law
The asking, enticing or counseling or
another to commit a crime
Mens Rea specific intent
Actus Reus - completion
- typically carries a lighter penalty than
attempt
- merges into the completed crime (solicitor
can be punished at the level of the act the
solicitee committed)
The crime must be a serious felony or
involve a breach of the peace.

MPC
211.1 Assault
(1) Simple Assault. A person is guilty of
assault if he:
(a) attempts to cause or purposely,
knowingly or recklessly causes bodily
injury to another; or
(b) negligently causes bodily injury to
another with a deadly weapon; or
(c) attempts by physical menace to put
another in fear of imminent serious bodily
injury.
(2) Aggravated Assault. A person is guilty
of aggravated assault if he:
(a) attempts to cause serious bodily injury
to another, or causes such injury purposely,
knowingly or recklessly under
circumstances manifesting extreme
indifference to the value of human life; or
(b) attempts to cause or purposely or
knowingly causes bodily injury to another
with a deadly weapon.
MPC
5.02(1) Criminal Solicitation
A person is guilty of solicitation to commit
a crime if with the purpose of promoting or
facilitating its commission he commands,
encourages or requests another person to
engage in specific conduct that would
constitute such crime or an attempt to
commit such crime or which would
establish his complicity in its commission
or attempted commission.
You can be guilty of soliciting someone
who has already decided to commit the
crime (promoting)
Uncommunicated Solicitation 5.02(2) it
is immaterial that the actor fails to
communicate with the person he solicits to
commit a crime if his conduct was designed

to effect such communication

Renunciation 5.02(3) - it is an affirmative
defense that, after soliciting another person
to commit a crime, persuaded him not to do
so or otherwise prevented commission of
the crime

Conspiracy
Common Law
Partnership in criminal purpose
Elements
1) mutual agreement or understanding
2) express or implied
3) between two or more persons
4) to commit a criminal act
Mens Rea Dual Intent
- intent to agree
- intent to commit the target offense
(intent meaning purpose under common
law, unless purpose may be inferred by
knowledge Lauria)
- Does not merge with the substantive
offense (you can be found guilty of both)
generally complete upon formulation of the
agreement; some jurisdiction do require an
overt act (though mere preparation will
generally suffice)
Treated much less seriously and punished
lower than the target offense
Pinkerton Liability
An actor is liable for the acts of a
coconspirator when the act is within the
scope of conspiracy and a natural or
probable consequence of the conspiracy
Corrupt Motive Doctrine (minority)
Parties to a conspiracy are not guilty of
conspiracy unless they have a guilty mind
or a corrupt/wrongful motive (limited to
malum prohibtum offenses)

MPC
5.03 Criminal Conspiracy
(1) Definition. 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.
Conspiracy generally merges with the
completed offense unless the conspiracy
was broader than the completed offense
Punished the same as the target offense
Liability
MPC rejects Pinkerton liability, but a
person may still be liable for the acts of
others through accomplice liability or other
means
Corrupt Motive Doctrine rejected by the
MPC
Whartons Rule MPC rejects Whartons
rule

Whartons Rule when the definition of the

crime requires two or more persons, the
conspiracy cannot be charged separately
(conspiracy is inherently included in its
definition)
- breaking down; no longer lets you off the
hook, just requires merger of an attempted
or completed offense
-

intent cannot be inferred from mere knowledge

cannot have a conspiracy to commit a strict liability crime because there is no
intent

Unilateral vs. Bilateral Conspiracy

Unilateral Conspiracy a person commits conspiracy when, with intent that an offense
be committed, he agrees with another to the commission of that offense
Bilateral Conspiracy any two or more persons conspire or agree together to do any
illegal act; if one person is acquitted the other cannot be guilty because each
coconspirator must fulfill every element
- MPC subscribes to unilateral approach, and common law isnt there yet but is
slowly gravitating away from the bilateral definition
Types of Conspiracy
People can be parties to the same conspiracy, even though they dont all know each other
Wheel Conspiracy hub in the middle (central player), with spokes (supplying central
player, contributing different skills/acts/supplies/functions); spokes may not even know
each other exist
Chain Conspiracy each link is necessary to the entire enterprise
- chain conspiracies are much easier to prosecute than wheel conspiracies
Multiplicity/MPC 5.03(3)
At common law and under the MPC, one agreement equals one conspiracy; multiple
objects can be part of one conspiracy.
- key is the number of agreements
Terminations of Conspiracy
Evidence of overt acts of concealment is not sufficient to make the act of concealment
part of the conspiracy
The governments defeat of the conspiracys ultimate objective does not automatically
terminate the conspiracy.
Defenses to Conspiracy
- Factual Impossibility no defense
- Withdrawal no defense, because conspiracy is complete upon agreement
o MPC recognizes voluntary withdrawal as a defense only if the defendant
thwarts the success of the conspiracy

A person may limit his liability for subsequent acts of the conspiracy, including
the target crime if he withdraws by an affirmative act giving notice to all members
of the conspiracy in time that they have the opportunity to abandon their plans

Accomplice Liability
Conspiracy v. Complicity
Conspiracy need proof of agreement, but not proof of assistance
Complicity need proof of assistance, but not proof of agreement
Common Law
Principal in the First Degree actor who
commits the crime, even if through an
innocent instrumentality
Principal in the Second Degree actual or
constructive aid, or counseling or
encouragement of the commission, in its
actual presence
Accessory Before the Fact same as the
principal in the second degree, but the
crime does not take place in that persons
presence
Accessory After the Fact someone with
knowledge of the crime provides assistance
to hinder prosecution or apprehension
Traditionally at common law, principal in
the first degree had to be convicted before
any other actors, but today accessories can
be convicted w/ or w/o principals.
Mens Rea Dual Intent
1) intent to assist the principal
2) intent that the offense actually be
committed
(most jurisdictions require purpose that the
offense be committed knowledge is not
sufficient)
Natural and Probable Consequences
Doctrine accomplice is liable for the
target offense, plus other crimes that are
natural and probable consequences thereof
Exclusions from Liability
- members of protected class
- withdrawal: repudiation of

MPC
2.06 Liability for Conduct of Another
Complicity
(1) A person is guilty of an offense if it is
committed by his own conduct or by
conduct of another person for which he is
legally accountable, or both.
(2) A person is legally accountable for the
conduct of another person when:
(a) acting with the kind of culpability that
is sufficient for the commission of the
offense, he cause an innocent or
irresponsible person to engage in such
conduct; or
(c) he is an accomplice of such other
person in the commission of the offense.
(3) A person is an accomplice of another
person in the commission of the offense, he
(a) with the purpose of promoting or
facilitating the commission of the offense,
he
(i) solicits such other person to commit it;
or
(ii) aids or agrees or attempts to aid such
other person in planning or committing it;
or
(iii) having a legal duty to prevent the
commission of the offense, fails to make a
proper effort to do so
(2) 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

encouragement, neutralizing
assistance, notifying authorities, or
otherwise preventing the target
offense

the offense.
Mens Rea purpose of promoting or
facilitating the commission of the offense
Natural and Probable Consequences
Doctrine rejected by MPC

mere presence can be enough of an actus reus for accomplice liability, even if you
didnt have the opportunity to fulfill your intended function
mere presence can be encouragement