HANDBOOK ON

CRIMINAL LAW EXAMS

Fall 2009

Deborah W. Denno
Arthur A. McGivney Professor of Law
Fordham University School of Law
140 West 62nd Street
New York, NY 10023
Phone: 212.636.6868
Email: ddenno@law.fordham.edu

PART TWO:
CRIMINAL LAW EXAMINATIONS, DISCUSSIONS,
AND SAMPLE STUDENT ANSWERS
Spring 1993 - Fall 1994

TABLE OF CONTENTS
Spring 1993 Criminal Law Exam ........................................................................................ 1
Discussion of Spring 1993 Criminal Law Exam ................................................................. 7
Student Answer to Spring 1993 Criminal Law Exam ....................................................... 32
Fall 1993 Criminal Law Exam .......................................................................................... 44
Student Answer to Fall 1993 Criminal Law Exam ........................................................... 48
Spring 1994 Criminal Law Exam ...................................................................................... 56
Student Answer to Spring 1994 Criminal Law Exam ....................................................... 60
Fall 1994 Criminal Law Exam .......................................................................................... 66
Student Answer to Fall 1994 Criminal Law Exam ........................................................... 71

SPRING 1993 CRIMINAL LAW EXAM

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FORDHAM UNIVERSITY SCHOOL OF LAW

EXAMINATION IN CRIMINAL LAW
DATE: May 10, 1993
THIS EXAMINATION CONSISTS OF 5 PAGES
EXAM NUMBER:_______
THIS IS A THREE HOUR EXAMINATION
CLASS SECTION:______
THIS IS A CLOSED BOOK EXAMINATION
PROFESSOR DENNO
NO MATERIALS MAY BE USED
DIRECTIONS:

YOU MUST INSERT YOUR IDENTIFICATION

NUMBER, YEAR AND SECTION, AND
PROFESSOR'S NAME ON EACH BLUEBOOK
AND ON THE EXAMINATION PAPER ITSELF.

This examination consists of only one fact pattern followed by nine questions. I
have not weighted the nine questions according to time or points because part of what I will be
examining is your ability to determine which topics may need more time or explanation. Because
the answers to some questions may be interrelated, I provide you with some flexibility in the
ways you may want to answer.

1.

1.
2.
3.
4.

5.

7.

Write your identification number, class section, and Professor's name on each
bluebook. Do not write your name on any bluebook or on the examination paper
itself.
Please number each bluebook sequentially. For example, if there are three
bluebooks, number the first 1 of 3, the second 2 of 3, etc.
Read each question carefully before you begin to write. Answer the question
according to the facts presented.
Please write legibly and use every other line. I can only give credit for what I can
read.
If you think it is necessary, state assumptions or additional assumptions of fact
not contained in the questions or facts but which you think are appropriate to
answer the questions more fully.
Take special note that for each offense mentioned, I ask that you discuss the
possible outcomes under both the Common Law and the MODEL PENAL
CODE. As a summary of your analysis, note how the results would be similar or
different depending on whether you were applying the Common Law or the
MODEL PENAL CODE.
Good luck!

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Brent Capwood, the eccentric creator of the "Robo-Doll Family," planned to throw a Ball
for his employees and their guests to celebrate the fact that his earnings exceeded one billion
dollars. Capwood decided that the Ball would take place at the enormous Robo-Doll factory,
which was elegantly furnished to accommodate Capwood's motto: "Nothing is too good for my
dolls."
In an effort to show off his creations, Capwood announced that his life-sized and lifelike dolls would mingle with his guests by "socializing" and also by serving beverages. This
included the complete line of "Robo-Doll Family." Betsy-doll resembled a fashion model.
With a press of her hand she would walk forward and say "I'm having a great time. You're
wonderful." Charlie-doll resembled a popular actor. A press of his hand would yield the same
response. Sally-doll was created to look like a twelve-year-old girl carrying a water pistol. With
a pat on her head she would raise her arm, squirt her pistol, and say, "Gotcha creep." Baby-doll
was a six month-old boy. A press of his belly would result in loud crying and burping.
On the night of the Ball, streams of immaculately dressed guests entered the Robo-Doll
factory, where they were greeted by scores of the different types of Robo-Dolls. The champagne
flowed in a dozen bars throughout the grand room. Capwood was delighted by the event,
chatting gleefully with guests.
Among the guests at the event was Simon, a Capwood employee, and Simon's friend
Roger. Although Simon was well aware of the presence of the many Robo-Dolls attending the
Ball, Roger was not. To an outsider like Roger, the Robo-Dolls and human guests looked
identical.
As the festivities began, Simon leaned over to Roger and pointed to Betsy. Simon
described Betsy as a woman who enjoyed being forced to engage in kinky sexual activities.
Knowing Roger's history of boasting that he could force any woman to do anything sexually,
Simon chuckled to himself that it would be just a matter of minutes before Roger would become
sexually aggressive with Betsy.
With Simon's continuing encouragement, Roger went over to Betsy and grabbed her
hand. Betsy responded from the press on her hand, walking directly forward into Roger and
stating, "I'm having a great time. You're wonderful." Roger then asked Betsy if she didnt mind
if they went to a quiet place to talk. Hearing no objection from Betsy, he lead her by the wrist
out of the main room into the coat room which, by this time, was nearly empty because most
guests had arrived.
In the coat room, Roger slammed Betsy hard against the wall and pressed her arms
together so she couldn't move. He unzipped his pants and lifted her dress in anticipation of
forcing his penis into her vagina. Yet Betsy neither resisted nor became nervous like other dates
he had treated in a similar manner. To Roger, the more terrified the woman, the more enticing
she was to him. However, while Roger gripped her hands and throat, Betsy merely repeated,
"I'm having a great time. You're wonderful." Lacking interest in Betsy's acquiescence, Roger
pushed her aside and left the coat room.

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Searching for someone else more his type, Roger saw Sally. Roger thought, "She's
young, she's small, and she'll be frightened when I take her into the coat room." Heading across
the room toward Sally, Roger yelled at Simon that he has found something better. Laughing,
Simon realized that Roger still had not understood that the "women" he was approaching weren't
real women at all. But to Roger he responded, "Go get her. She's only twelve, but what the
hell!"
Approaching Sally from the back, Roger patted her on the head. Sally turned around and
yelled, "Gotcha creep," while squirting her water gun at Roger. Furious, Roger covered Sally's
mouth surreptitiously and lead her to the coat room. The pressure on Sally's head made her
squirt her gun at Roger once again and repeat, "Gotcha creep."
With that, Roger ripped off Sally's pants as well as his own. It was then, however, that he
realized that she was not human. Confused, Roger further noticed that Betsy-doll had not moved
from the position in which he had left her. Lifting up Betsy-doll's dress, he realized that she also
was not human.
Roger ran out of the coat-room screaming at the top of his lungs, "No one is human! No
one is alive!" To his right was a Baby-doll, in a stroller. Leaning down he picked up Baby-doll
and threw him against the wall. Although Capwood prided himself on the durability of his
Robo-Dolls, Baby-doll couldn't withstand the force of Roger's throw. His head was smashed and
his right leg came off.
By this time, Capwood heard Roger's loud screams. Running through the crowd, he had
time to notice Roger pick up a real baby named Jane. Screaming, Roger shook Jane violently
until her sobbing ceased and she became unconscious. At that point, he threw her on the floor.
Jane died seventeen hours later.
Now a crowd, which included Simon and Capwood, had surrounded Roger. Seeing
Capwood, whom he had met earlier in the evening, Roger became even more infuriated. Simon
attempted to calm Roger by telling him that most of the people at the Ball were real. Roger
appeared not to comprehend Simon, nor anyone else yelling around him, including Jane's mother
who was calling Simon a murderer.
Capwood was especially furious at Roger. The doll manufacturer was upset that the
party that had cost him $100,000 was ruined. He screamed at Roger not to stain his fine carpet
with blood by throwing more kids.
With that, Roger lunged at Capwood. Maybe you're not human either, you fool!, he
screamed. With his fists barred, Roger started hitting Capwood's face. Although Capwood
could easily have retreated into the crowd and retrieved his body guards, he returned the blows,
soon pinning Roger down on the floor and strangling him. Seeing that Roger could possibly die,
Simon jumped in and pulled Capwood off Roger. "He deserved to die!" Capwood screamed at
Simon. Running to one of the bars, Capwood grabbed a knife and lunged toward Simon's heart,
which he pierced. Bleeding heavily, Simon slumped. Doctors later determined that he nearly
died.
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QUESTIONS
Question 1: Roger, Capwood, and Simon are each charged with one or more of the following
offenses under the Common Law:
a.
Rape: "A person is guilty of rape in the first degree if the person engages in
vaginal intercourse by force or threat of force where the defendant uses a deadly weapon, inflicts
or threatens 'suffocation, strangulation, disfigurement or serious physical injury,' or is aided by
one or more other persons. A person is guilty of rape in the second degree if the person engages
in vaginal intercourse with another person by force or threat of force against the will and without
the consent of the other person."
b.
Statutory Rape: A person is guilty of statutory rape in the first degree if he
engages in sexual intercourse with a girl under age 10. A person is guilty of statutory rape in the
second degree if he has sexual intercourse with a girl between the ages of 10-16.
Homicide: "purposely, knowingly, recklessly, or negligently causing the death of
c.
a human being."
d.

Assault with Intent to Kill.

Analyze the likelihood of whether or not Roger, Capwood, or Simon would be

found guilty or innocent of each of these three offenses under the Common Law AND under the
Model Penal Code. In answering this question, discuss each offense separately for each of the
defendants, and then the possible Common Law and Model Penal Code outcomes. Are the
outcomes under the Common Law and the Model Penal Code similar or different?
Question 2: Are there any other offenses (which we studied) for which any of the three
defendants could have been charged under the Common Law or the Model Penal Code?
Question 3: What possible defenses, under the Common Law and the Model Penal Code, may
any of the three defendants have for the offenses mentioned in Question 1 or in Question 2? Are
these possible defenses under the Common Law and the Model Penal Code similar or different?
Question 4: In the facts above, Roger appeared to have heard Simon's comment that Sally was
twelve. What if Roger had not heard Simon's comment and thought:
a.

Sally was nine.

b.

Sally was seventeen.

Question 5: Suppose Betsy were human, but responded to Roger in exactly the same way as
described in the facts above. Would Roger's liability be any different?

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Question 6: Would Roger be eligible for the death penalty? Would it make any difference if he
were an African American? Would it make any difference if he had a history of convictions?
Question 7: It was later discovered that Jane died of shaken baby syndrome, a condition where
severe brain damage is induced by violent shaking. Had Jane been seen by a doctor within
twelve hours after the incident, it is likely that her life could have been saved. However,
Tammy, Jane's mother, testified that she was so upset that Jane's drool might ruin Capwood's
carpet that she waited sixteen hours to help Capwood clean up before she was able to take Jane
to the hospital. Does Tammy's behavior change Roger's liability?
Question 8: Capwood was so impressed by Tammy's willingness to stay and clean his carpet
that he offered her a ride home from the hospital after Tammy discovered that Jane had died.
Tammy then invited Capwood into her home. Soon thereafter Capwood convinced Tammy to
have sex with him. Unbeknownst to Tammy, a neighbor called Tammy's husband to tell him that
she saw Tammy walking arm-and-arm with another man into their house. Enraged, Tammy's
husband drove home and burst into the bedroom, attacking both Capwood and Tammy with his
fists. Capwood gave the husband a karate blow to the head, whereupon the husband fell
immediately. Turning to Capwood, Tammy commented, "He's always had a temper. I hope he's
alright. But I just can't deal with this right now. Let's go and get a drink." Capwood and
Tammy then left. A neighbor found Tammy's husband alive but with a severe injury to his head
twelve hours later. It was unclear whether his condition would have been different had he
received medical treatment any earlier.
Both Capwood and Tammy's husband are prosecuted for assault with intent to kill. What
are their respective liabilities, or offenses, if any? What possible defenses could they have?
Should Tammy have been prosecuted for anything?
Question 9: Suppose Simon died from the stab wound six months later. Would Capwood's or
Roger's liability be any different?
END OF EXAMINATION

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DISCUSSION OF SPRING 1993 CRIMINAL LAW EXAM

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Question 1: Offenses
(1) Roger: Rape
Betsy (assuming Betsy was human)
A) 1st degree
(i)act: engaging in vaginal intercourse
(ii)mens rea: silent
(iii)attendant circumstances: force or threat of force, deadly weapon, inflicts or threatens
'suffocation, strangulation, disfigurement or serious physical injury,' aided by one or more other
persons.
(iv)result: intercourse
B) 2nd degree
(i)act: vaginal intercourse
(ii)mens rea: silent
(iii)attendant circumstances: another person, against the will, without the consent of the other
person
(iv)result: intercourse
(a) common law
Under the common law rape is a general intent crime. Here the statute defines the act as
vaginal intercourse, but in both degrees of rape the mens rea term is silent. Since there are over
80 mens rea terms at common law, the statutory interpretation can range from strict liabilityapplied to the attendant circumstances- to a different mens rea term for the act element. Courts
can rely on at least six sources for help in interpreting silent statutes: (1) legislative history; (2)
statutory construction; (3) judicial discretion; (4) assumption of the risk; (5) morals/social
policy; and (6) the nature of the crime.
Typically in rape the act has a mens rea of intent. However, we still do not know what
mens rea term to use for the force or the victim's lack of consent. Roger satisfied the mens rea of
intent. Roger led Betsy to the coat room and slammed her hard against the wall and pressed her
arms so that she could not move. However, he never completed the act. He said "lady you're a
drag" and left. Although he also gripped her throat (thus strangulation- one of the attendant
circumstances) he did not have vaginal intercourse. While Roger probably used enough force
for 1st degree rape, the failure to complete the act means that there was no first or second degree
rape.

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(b) M.P.C.
Sections 2.02(3) and 2.02(4) of the M.P.C. allow us to read in a mens rea term of
purposely or knowingly to the act of intercourse and reckless or above for the attendant
circumstance. Here, as discussed in the common law, gripping Betsy's throat seems to be
enough force to meet the M.P.C.'s force requirement for rape - "serious bodily injury" or
"extreme pain". 1 Again, however, Roger did not complete the act. Had he completed the act it
could have been a felony in the first degree because Betsy had never permitted him sexual
liberties before. 2
(c) Conclusion
Under both the common law and the M.P.C., Roger could not be convicted of rape. Even
assuming that Roger met the force requirement of both the common law and the M.P.C., he
never made it clear that he had the intent to rape Betsy despite his sexual history and comments
to Simon. Most importantly, he never consummated the act.
(2) Roger: Rape
Sally (assuming Sally was human)
Here Roger's intent to commit rape is clearer. He announces to Sally that he will show
her what happens to little girls who play with him. He rips off his pants and then her pants
before he realizes she is not human. Under the common law it appears that Roger met the force
requirement. Covering her mouth and yelling that he will show her what happens to little girls
who play with him probably meets the threat of force requirement, even if ripping off her pants
does not. However, under the M.P.C. this might not rise to the level of serious bodily injury or
extreme pain.
Conclusion
The fact that Roger never consummated the act makes a rape conviction impossible.
Further, there is an attendant circumstance of "another person" in the second degree rape statute.
Neither Sally nor Betsy are people.
(3) Simon: Accomplice to Rape
Sally, Betsy
(a) common Law
A person must have two mens rea to be an accomplice. He must intentionally engage in
acts of assistance and he must aid in fact. He also must meet the minimum culpability
requirement for the offense. Further, only if the principal is convicted can the accomplice be
convicted. Finally he can only be found guilty for the natural and probable consequences of the
principal's actions.

1
2

Threat of death and or kidnaping do not apply. (M.P.C.213.1.(1)(a))

M.P.C. 213.1.(d)(ii)
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According to the facts, it could be argued that Simon may have verbally encouraged
Roger to rape both Betsy and Sally. The question is whether this kind of verbal encouragement
is enough to establish complicity. Under some common law cases verbal encouragement may be
sufficient to establish complicity. However, it could be argued that Simon did not explicitly
encourage Roger to rape, he merely encouraged him to approach Betsy and Sally while aware of
Roger's tendency toward sexual aggression. This scenario is to be contrasted with a potentially
more criminal one where, for example, Simon would actually goad and yell, "Rape her, rape
her." Regardless, if the principal (Roger) in this case is not convicted of the offense, Simon will
not be convicted either. Accomplices have only derivative liability.
(b) M.P.C.
There are two exceptions to the above analysis under the M.P.C. The M.P.C. abolishes
the distinction between principals and accessories, so Simon's liability for the crime would not
hinge on Roger being convicted. Further, the accomplice need only attempt to aid (as opposed
to aid in fact) in the crime. However, to be an accomplice 3 a person must act with the purpose
of "promoting" or "facilitating" the act. Therefore, Simon, a Capwood employee, who knew that
Betsy and Sally were dolls, did not act with the requisite intent.
(c) Conclusion
Under both the common law and the MPC, it is open to question whether or not the kind
of verbal encouragement Simon demonstrated is sufficient to sustain an action against him as an
accomplice (assuming Betsy and Sally were human). Because Simon's verbal statements were
indirect and suggestive only, accomplice liability would be difficult to prove. Regardless, the
remaining sections of this exam are analyzed with the assumption that such a conviction against
Simon is possible.
(4) Roger: Statutory Rape
Sally
A) 1st degree
(i) act: engages in sexual intercourse
(ii) mens rea: silent
(iii) attendant circumstances: a girl, under age ten
(iv) result: intercourse
B) 2nd degree
(i) act: has sexual intercourse
(ii) mens rea: silent
(iii) attendant circumstances: a girl, between the ages of 10-16
(iv) result: intercourse
(a) common law
1st degree
3

Under M.P.C. 2.06 (3).

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Once again the mens rea term is silent in this statute. Under most common law
jurisdictions, statutory rape is a strict liability offense. This means that there is no mens rea term
pertaining to the attendant circumstance of the girl's age. The mens rea term that applies to the
act of sexual intercourse is still usually some form of intent (this is usually presumed from the
act itself). Because Sally is twelve Roger would not be found guilty of 1st degree statutory rape.
2nd degree
Sally is age twelve. Roger was told by Simon that she is age twelve. Roger notices that
Sally is young and therefore assumes that she will be easily frightened. 4 However, the question
becomes, do we apply strict liability as to Roger believing the attendant circumstance of Sally
being a girl. Although, Roger has the mens rea to complete the act, the fact remains that Sally is
a doll and the act was never completed.
(b) M.P.C.
Under the M.P.C., it is not a strict liability crime to rape a twelve year old girl although it
would be if the child were under age ten. Under MPC 213.6(1), Mistake as to Age, however,
a defendant much prove by a preponderance of the evidence that he reasonably believed that the
child was above age ten if the child is below a critical age other than age ten. 5 Thus Roger's act
would not fall under the category of statutory rape although Roger would have to prove by a
preponderance of the evidence that he reasonably believed that Sally was above age ten. The
same kind of statutory analysis that was conducted for the crime of rape above could also be
conducted here.
(5) Simon: Accomplice to statutory rape
Sally
Once again we are left with the same issue of whether verbal encouragement is sufficient
to establish complicity. However, in Sally's case the encouragement was stronger. Simon told
Roger that Sally "is only twelve, but what the hell!" However, Simon knew that Sally was a
doll. The fact is that Simon did not intend the crime to come to fruition. Despite the fact that the
crime itself is strict liability in the first degree, to be an accomplice to the crime, Simon must
have that intent as well. He knew that the act could not occur.

Mistake of age is not a defense to statutory rape.

See MPC 213.6(1), Mistake as to Age. "Whenever in this Article the criminality of conduct depends on a
child's being below the age of 10, it is no defense that the actor did not know the child's age, or reasonably believed
the child to be older than 10. When criminality depends on the child's being below a critical age other than 10, it is
a defense for the actor to prove by a preponderance of the evidence that he reasonably believed the child to be
above the critical age."
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(6) Roger: homicide

Jane
(i) act: causing the death
(ii) mens rea: purposely, knowingly, recklessly or negligently
(iii) attendant circumstances: human being
(iv) causation: actus reus actually caused the death
(v) result: death
(a) common law
(i) act
The facts show that Roger engaged in the act of causing Jane's death. He shook her
violently and then threw her on the floor.
(ii) mens rea
Roger demonstrated at least a negligent intent toward killing Jane. He picked up Jane
and shook her violently and then threw her on the floor. The only question is whether this is
murder or manslaughter. In order for it to be murder, the actor must act with malice
aforethought. One of the ways of demonstrating malice aforethought is when the actor acts with
a reckless disregard for human life. Throwing a baby on the floor demonstrates a reckless
disregard for human life. Even if it is not the actor's intent, inflicting grievous bodily injury also
leads to an implication of malice aforethought. 6
(iii) attendant circumstances
In order for this crime to be complete Roger had to be at least negligent as to Jane being a
human being. Jane was sobbing. A reasonable person could have recognized that Jane was
human.
(iv) causation
The conduct must have caused the result. Roger must have been the actual "but...for"
cause as well as the proximate cause. According to the facts, but for Roger's shaking and
throwing her, Jane would not have died. Further, Roger was a sufficiently direct cause of her
death.
(v) result
The facts clearly state that Jane died.

The other two ways are an intention to kill a human being and a death that results from either an attempt or the
actual commission of a felony.
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(b) M.P.C.
(i) act and mens rea
Unlike the common law the intent to inflict grievous bodily injury does not satisfy an
intent for murder. The actor must act either purposely or knowingly or with a reckless
indifference to human life. However, as in the common law analysis, Roger's shaking Jane until
unconsciousness and then throwing her on the floor probably exhibited a reckless indifference to
human life.
(ii) causation
Causation differs from the common law under the M.P.C. in that the M.P.C. does not
require that proximate cause be established. Actual "but..for" causation is used. We look at the
type of injury the conduct should induce and whether or not it is too remote from the conduct.
But for Roger's conduct, death would not have occurred. The only question is whether the fact
that Jane did not die for another 17 hours makes the result too remote from the act. It probably
does not.
(7) Roger: assault with intent to kill
Capwood
(a) common law
This is a specific intent crime. The mens rea for the assault (general intent portion) is not
specified but usually assault requires intent. The actor must also have the specific intent to kill.
Roger lunged at Capwood and started hitting his face. While this is almost definitely assault, it
might not have risen to the level of assault with intent to kill. According to the facts, even
though Roger aimed for the face with his fists, this would not normally lead to death. If Roger's
conduct does not in fact demonstrate the necessary intent to kill, then it may be merely an
assault.
(b) M.P.C.
Here, the issue hinges on whether lunging at someone and punching him in the face
shows an intent to kill. If it does not, there is no mens rea for the intent to kill and the crime is
merely assault.
(8) Capwood: assault with intent to kill
Roger
(a) common law
The facts state that Capwood returned the blows and pinned Roger on the floor and began
to strangle him. "Serious" strangulation would suggest an intent to kill. The two issues that
remain are whether Capwood had a duty to retreat and if he did not, was he justified in using
deadly force, if it can be determined that the strangulation he engaged in constituted deadly
force. (A more thorough discussion of this issue will appear under "self defense," which is
outlined below.)

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(9) Capwood: assault with intent to kill

Simon
Under both the common law and the M.P.C. Capwood's attack on Simon could probably
constitute assault with intent to kill. Capwood stabbed Simon in the heart. The fact that he
aimed for the heart could help to establish the intent for the intent to kill portion of the crime.
(10) Simon: assault with intent to kill
Capwood
(a) common law
This charge arises from the Pinkerton doctrine. The question is was Roger's assault
with intent to kill (assuming that is what it was) of Capwood, a foreseeable consequence of his
failure to rape the two dolls? Despite the fact that it could have been the encouragement that
Simon afforded Roger that led him to attempt to rape the dolls, the reaction by Roger to his
inability to do so was probably an unforeseeable consequence. It is certainly not a natural
reaction that a reasonable person would expect. It is highly unlikely that Simon's liability could
possibly extend this far.
(b) M.P.C.
The M.P.C. does not recognize the Pinkerton doctrine. Under the M.P.C. the further
conduct exhibited by Roger is most likely far too remote from the verbal encouragement given
by Simon.
Question 2: Other Offenses
(1) Roger: attempted rape
Betsy (acknowledging that she is a doll)
(a) common law
Attempt is a specific intent crime. The actor must have the intent to engage in the
conduct as well as the further intent to complete the targeted offense.
i. act
Roger must have had at least the intent to commit rape. In order to charge him with this
crime he must have taken a substantial step toward completing the act. There are six possible
common law tests to establish what is considered a substantial step:
(1) Last proximate act: the actor must take the final step toward committing the offense.
Here, Roger did not ever arrive at the penetration part of the rape and so he did not commit the
last proximate act.
(2) Indispensable element: the actor must have all the necessary tools to complete the
act. Roger could have completed the act under this test. Rape only requires that a man have the
physical capacity to carry out the crime.

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(3) Dangerous proximity: the actor must be in temporal as well as spacial proximity to
commit the offense and the act must be likely to induce apprehension that the offense will take
place. Roger gripped Betsy's throat, thereby likely inducing apprehension for rape and he was
geographically as well as temporally able to commit the crime.
(4) Physical proximity (the most popular test): the actor must be geographically able to
complete the crime as well as possessing the power to complete the crime. Again, Roger was
close enough to complete the offense and was capable of completing the act.
(5) Unequivocality (or Res Ipsa): A reasonable person must believe that the actor took
a substantial step toward the completion of the crime. Being that Roger never even found out
that Betsy was not human before he desisted, under this test Roger possibly did not take a
substantial step. He desisted, in terms of his intent, before he came close to the act.
(6) Probable desistance: the actor must be past the point of no return in the commission
of the offense. As in the previous test, the fact that Roger did not find out at the time of the act
that Betsy was not human shows that he desisted before the crime was committed.
ii. mens rea
The actor must intend for the act to occur as well as the target offense. Roger did have
the first intent of engaging in the act of rape. However, it is not clear that Roger had the further
intent to complete the targeted offense once he discovered that Betsy was not responsive. He left
the scene because Betsy was a "drag", not because he could not completed the act.
(b) M.P.C.
The M.P.C. also has "two intents" for an attempted crime. The actor must have the intent
to engage in the act and an intent to ultimately complete the targeted offense. Further the M.P.C.
also has a substantial step test.
i. act
The M.P.C. gives examples concerning what constitutes a substantial step. The M.P.C.
looks for evidence that is strongly corroborative of the actor's criminal intent. As in the common
law this can go both ways. On one hand it is obvious that Roger intended to commit a rape; on
the other hand the fact that he did not realize, at the time, that Betsy was not human indicates a
lack of intent of the target offense. He at least should have gotten to the stage where he could
realize that Betsy was not human.
ii. mens rea
Again Roger probably lacked the further intent of completing the act.

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(2) Roger: attempted rape

Sally
(a) common law
Roger passed at least the dangerous and the physical proximity tests for this crime.
Unlike with Betsy, he gets as close to the act as possible when he realizes that Sally is a doll.
Had she been human he probably would have tried to complete the act. Only under the Last
Proximate Act test could Roger possibly argue that he did not take a substantial step toward the
completion of the act. This example highlights the problem of this particular test. In the absence
of penetration, the actor can possibly avoid a charge of attempted rape. However, even under
this test Roger arguably passed the point of no return. But for the fact that she was not human he
would have completed the act. Further, his actions may indicate that he had the second intent of
having the act come to fruition.
(b) M.P.C.
Under the M.P.C., had the attendant circumstance of Sally being human been as Roger
believed, he would have probably committed a rape. He passed the MPC's definition of
"substantial step." Thus, under the M.P.C., he would probably be charged with the crime of
attempted rape.
(3) Roger: attempted statutory rape
Sally
1st degree
(a) common law
Once again, Sally is twelve so we would not find him guilty of this offense in the first
degree
(b) M.P.C.
Under the M.P.C., "the criminality of the conduct depends on a child's being below the
age of 10." See MPC 213.6(1).
2nd degree
(a) common law
Here, we do not have the same problems that we had in statutory rape. In that discussion
the problem was that since Sally was not a girl, one of the attendant circumstances was missing.
However, this is a strict liability crime. Roger's mistake as to Sally being a girl is irrelevant. All
that is necessary is that the attendant circumstances were as Roger believed them to be. We do
not need the actual act to have been completed for an attempted crime. Further, in a strict
liability crime, mistakes as to attendant circumstances are generally not considered.
(b) M.P.C.
The analysis is similar to that given above.

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(4) Simon: Accomplice to an attempted statutory rape

Sally
Since statutory rape is a strict liability crime, Simon's attempt may be strict liability as
well although some courts have contended that there can be no attempt of a strict liability crime.
Other courts may contend that a strict liability crime will generally allow us to disregard the
mens rea of the actor. However, since courts dislike strict liability, they would probably require
some form of intent as to Simon's intent to see the crime come to fruition. Since Simon knew
that Sally was a doll, a court would probably not convict him of this crime.
(5) Roger: Other sex offenses
A) Betsy
(a) common law
These sex offenses may be comparable to those under the Model Penal Code.
(b) M.P.C.
If Betsy were human, Roger could possibly be charged with Sexual Assault. See
213.4(1) "he knows that the contact is offensive to other person."
B) Sally
(a) common law
These sex offenses may be comparable to those under the Model Penal Code.
(b) M.P.C.
If Sally were human, Roger could also be charged with various provisions under Sexual
Assault. See 213.6(1)(3)(6).
(6) Roger: felony murder
Jane
(a) common law
Felony murder allows for strict liability for a death arising during the commission or
attempted commission of a felony. Here the underlying felony is rape. In some states the felony
must be enumerated in the statute. Rape or attempted rape are usually enumerated.
There are two basic approaches to applying the felony murder rule. Under the abstract
approach, if the crime is inherently dangerous in general then we assume its danger in the
particular case. Under the facts of the particular case approach, we look to see in the particular
circumstances of the crime if the initial crime inherently dangerous.
Here, under the first approach we can assume that rape is an inherently dangerous crime.
The subsequent murder does not merge with the rape and Roger could possibly be charged with
felony murder. Under the second approach it might not be considered inherently dangerous to
attempt to rape a doll. How a court wants to interpret these two approaches is generally open to
its discretion. The results of its interpretation will have some bearing on whether or not Roger
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could be considered for the death penalty since a felony murder conviction is considered to be an
aggravating circumstance.
(b) M.P.C.
The M.P.C. does list rape as a felony under its modified felony murder rule. However,
the rule allows a defendant to rebut the presumption of extreme recklessness. Roger may be able
to succeed in rebutting this presumption if he could show, for example, that the felonies of the
attempted rapes of Betsy and Sally were too remotely connected to the murder of Jane. He may
well succeed in his argument.
(7) Simon (accomplice liability): felony murder
Jane
(a) common law
The common law has created several doctrines that limit the liability of an accomplice if
it can be shown that Simon was indeed an accomplice to Roger. Assuming that Simon's
encouragement of the rape is considered complicity to the crime, he still might not be liable for
the subsequent murder of Jane. Roger's reactions to his failed rape attempts can be considered a
gross and bizarre intervening act. Further, Roger's subsequent behavior could arguably be
unforeseeable, especially when Simon knew that the rapes could not occur.
(b) M.P.C.
Here as well, Simon could argue that felony murder should not be triggered. He could
attempt to rebut the presumption that the death was in furtherance of the original crime of
attempted rape. Further, the death was so remote to the first crime (attempted rape) that it would
be a stretch to say that his intent should be applied to the second crime (murder) as well.
(8) Capwood: attempted homicide
Simon
(i) act: causing the death
(ii) mens rea: purposely, knowingly, recklessly or negligently
(iii) attendant circumstances: a human being
(iv) causation: the act would have actually caused the death
(a) common law
Attempted homicide is a specific intent crime. The actor must have the intent to engage
in the conduct and the further intent to complete the targeted offense.

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(i) act
In determining if Capwood took a substantial step toward the commission of the crime
we again look to the six possible common law tests. It would appear that stabbing someone in
the heart even meets the difficult Last Proximate Act test. A knife is the only tool that
Capwood needed to complete the act under the Indispensable Element test. Capwood also
passes the Dangerous and Physical Proximity tests. He was right in front of Simon and was
close enough to, and in fact did, stab Simon in the heart. A reasonable person would believe that
Capwood took a substantial step toward the crime and thus Capwood also passes the
Unequivocality Test. Finally, once Capwood plunged the knife toward Simon's heart he passed
the point of no return and thus the Probable Desistance test as well.
(ii) mens rea
Capwood's intent to engage in stabbing was suggested by his running to the bar to get a
knife. His further intent to kill is made more clear by his stabbing Simon in the heart.
(iii) attendant circumstances
Capwood, unlike Roger, has no possible claim that he did not know that his victim was
human. Capwood knew the capabilities of the dolls and knew the differences between his dolls
and a human. Further, it appears that he probably knew Simon personally as it was Capwood's
party and Simon was an employee.
(iv) Causation
This is likewise a fairly clear issue. But for Capwood's stabbing of Simon, Simon would
not have been seriously injured. Since we have actual cause we do not need to ask who was the
proximate cause.
(b) M.P.C.
(i) act
Capwood's grabbing a knife and stabbing Simon in the heart is at least strongly
corroborative of taking a substantial step.
(ii) mens rea
As in the common law analyses, Capwood reveals his intent to cause serious bodily
injury by going after Simon with a knife. He also has the necessary mental state of at least
negligence which is revealed by his stabbing specifically in a mortal area.
(ii) attendant circumstances
Same as the common law.

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(iv) Causation
But for Capwood's actions Simon would not have been seriously injured. Furthermore,
since Capwood was the only actor and the result occurred immediately, it is likely that under the
M.P.C. he will be found guilty of this crime.

(9) Conspiracy
There is no evidence that there were any agreements between any of the actors in this fact
pattern. Therefore, it is unlikely that any of the actors would be charged with this crime.
Question 3: Defenses
(1) Roger
(A) Attempted Rape
(i) impossibility 7
Roger will argue that since they were dolls, it was impossible for the crime to occur, and
thus he should not be found guilty. There are three types of impossibility. Factual
impossibility occurs when the intended conduct is a crime and had the facts been as the
defendant believed them to be it would have been a crime. Pure legal impossibility is when the
conduct is lawful but the defendant believes he committed a crime. Finally hybrid legal
impossibility occurs when the intended conduct is a crime and the defendant intends to do the
act, but a mistake regarding an aspect of the act allows the behavior to fall outside of the
definition of the crime.
(a) common law
Factual impossibility is not a defense under common law. Here, had the facts been as
Roger believed them to be he would have been committing a crime - attempted rape. Roger
could try to argue that this is a case of pure legal impossibility or at least hybrid impossibility.
The question is whether a court would be willing to prosecute on the basis of intent. He could
argue that he did not hurt a human. The impossibility of his crime is such that in terms of his
actions alone he committed no crime. This might lead a court to be more hesitant of convicting
him purely on the "if the facts were as he believed them to be", standard.
(b) M.P.C.
The M.P.C. abolished factual and hybrid impossibility; it did not abolish pure legal
impossibility. Once again this would be Roger's only defense under impossibility. However,
since the M.P.C. focuses more than the common law on the actor's mens rea, it might be more
harsh in its application of an actor's behavior being a crime if the actor engaged in conduct that
would be unlawful if the facts were as the actor believed them to be.
(B) Homicide
7

See the Spring 1991 exam answer.

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(i) mistake of fact

Roger could argue that he thought Jane was a doll. If this were true then his act would be
worse than what he thought it was.
(a) common law
Given the fact that the baby was sobbing, Roger's attempt to use a mistake of fact defense
might not be reasonable for the general intent crime of homicide. However it could be argued
that since the other Robo- dolls talked and exhibited other life- like signs, the fact that Jane was
crying does not make his mistake unreasonable. This would be a good defense to assert and
there is a chance that he could be exculpated for his crime.
(b) M.P.C.
As in the common law analysis, if it can be shown that Roger believed that Jane was a
doll, then he might be exculpated. Here, he could show that he did not possess the mens rea for
the crime. He did not believe Jane was human. His intention was to merely throw a doll.

(ii) insanity
This is a true defense. Roger can argue that when he found out that Betsy and Sally were
dolls, he became insane.
(a) common law
Under the MNaghten test, the actor, due to a mental disease or defect, does not know
the nature and wrongfulness of his acts. Here, Roger can argue that when he realized that Betsy
and Sally were dolls, his mental disease or defect rendered him unable to distinguish right from
wrong. This can be evidenced by his bizarre conduct and by the fact, for example, that when he
saw his friend, Simon, bleeding heavily he mentioned that he looked good in red. He could also
argue that upon learning that Sally and Betsy were not human, he had an irresistible impulse
and lost the ability to control his volition. The MNaghten test pinpoints cognitive impairment,
while the irresistible impulse test pinpoints volitional impairment. Both tests require complete
impairment, a high standard for Roger to meet. Given the facts and our lack of knowledge of
Roger's complete psychiatric history, both sides must be argued concerning whether Roger can
successfully argue insanity.
(b) M.P.C.
The M.P.C. combines the cognitive branch with the volitional branch of the common law
tests. It has a less standard to meet - that of substantial impairment. Roger will have a less
difficult time meeting the standard of the MPC test although, again, the facts need to be argued
both ways.
(c) Durham or Product test and the Federal or Appreciation test
These tests do not apply here.

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(iii)diminished capacity
(a) common law
The defense of diminished capacity can appear in two forms. In the mens rea version,
Roger can argue that his history of psychiatric problems diminished his capacity to appreciate
the wrongfulness of his actions. If this case in chief defense were accepted, Roger could go free.
The other form of this defense is the partial responsibility doctrine. Under this doctrine murder
could be reduced to manslaughter.
(b) M.P.C.
A similar line of argument could be followed under the M.P.C.
(iv) provocation
(a) common law
Roger can argue that the fact that the dolls were not human was adequate provocation
and in the heat of passion he murdered Jane. The problem with this defense is that it might be
hard to assert that a failed rape attempt, even under the most bizarre circumstances, is adequate
provocation to commit a murder.
(v) extreme emotional disturbance
(b) M.P.C.
If Roger can show that he had a reasonable excuse for his actions, he could potentially
get his murder charge reduced to manslaughter.
(2) Capwood
(A) Assault with intent to kill
Roger
(i) self defense
Capwood could argue that he was defending himself against Roger's unprovoked attack.
The problem with this defense is that Capwood used deadly force (he even admitted that he was
attempting to kill Roger-"He deserved to die") and did not retreat although he could easily have
done so.
Interpretations could vary under the common law and the Model Penal Code which
makes some exceptions for retreat standards in one's place of work.

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(a) common law

Deadly force can only be used in response to deadly force. According to the facts, Roger
was punching Capwood in the face. It is difficult to argue that this behavior exhibited deadly
force. Further, Capwood did not retreat although he easily could have done so. Whether or not
Capwood was required to retreat depends upon whether the fight took place in a retreat
jurisdiction. Capwood may be privileged under the common law to stand his ground. Moreover,
he arguably was defending his property. Roger was on an apparent destructive rampage on
Capwood's property, he was the aggressor, and he was not appearing to retreat.
(b) M.P.C.
The question is whether punching in the face implies a threat of "serious bodily harm."
Capwood complains about his carpet at the end of the fact pattern and not the damage to his face
or his fear of being hurt, indicating Capwood's lack of fear of serious bodily harm.
Moreover, the issue of Capwood not retreating is interpreted differently under the
M.P.C.. Since Roger was the aggressor and the fight took place on Capwood's property,
Capwood may not have to retreat. Furthermore, Roger was not a Capwood employee, further
evidence that Capwood had no duty to retreat under the MPC.
MPC 3.04(2)(b)(ii)(1), Use of Force in Self-Protection, is necessary to analyze here
to determine Capwood's obligations to retreat in his place of work from another person who was
the initial aggressor and who was not his employee: "(2)(b) The use of deadly force is not
justifiable . . . if (ii) the actor knows that he can avoid the necessity of using such force with
complete safety by retreating . . . , except that: (1) the actor is not obliged to retreat from
his dwelling of place or 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."
(ii) defense of another
Capwood could argue that he did not retreat and did use deadly force because he was
defending the other guests at the party from deadly force.
(a) common law
Capwood could argue that he "stepped into the shoes" of the other guests at the party.
This is not a bad defense. The facts state that Roger did not comprehend the cries around him
telling him to stop. If Capwood did not suppress Roger he arguably would have continued his
destructive rampage.
(b) M.P.C. 8
Capwood could argue that he subjectively believed (and it was a reasonable belief
anyway) that the other guests needed his help to ward off any more homicides by Roger.

See M.P.C. 3.05 (1)-(2).

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(B) Attempted homicide

Simon
(i) provocation
(a) common law
Capwood could argue that all the destruction around him coupled with the ruin of his
party, provoked him and in the heat of passion he grabbed a knife and stabbed Simon. Besides
the fact that this might not be adequate provocation, it is questionable whether he acted in the
heat of passion. The facts say he first ran to one of the bars. Some cases would determine that
this was adequate time for him to cool off, although other cases may argue otherwise.
(ii) extreme emotional disturbance
(b) M.P.C.
Capwood might be able to get a partial defense because his capacity was apparently
diminished. The facts state that he was screaming and apparently very upset over the ruin of his
party.
(3) Simon
(A) Rape (as an accomplice)
Simon can argue that because he knew that Betsy and Sally were dolls, he knew there
would be no rape. Without the requisite intent for the crime to actually happen Simon will not
be guilty of complicity.
(B) Homicide (felony murder)
(i) Simon can argue lack of causation. It was unforeseeable that Roger would have such a severe
reaction to his failed rape attempts. Roger's subsequent behavior was gross and bizarre.
(ii) abandonment
Simon can claim that he tried to bring Roger to his senses and yelled at him to stop what
he was doing. However, at that point it was probably too late for Simon to make this claim.
(4) Roger, Capwood, and Simon
(i) Voluntary Intoxication
Although the facts do not state that any of them were drunk, this is still a possibility.
They were at a party and the "champagne flowed" from a dozen bars.

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(a) common law

If the defense negates the specific intent portion of the crime then it can be used as a case
in chief defense.
(b) M.P.C.
If the defense negates the mens rea of the act then it can be used. This defense can not be
used as a defense for reckless or negligent crimes.
Question 4: Change of Facts
(1) Roger does not hear that Sally is twelve and:
A) He thinks she is nine: Impossibility
(assuming Sally is human)
(i) Impossibility with Regard to Age
Under the common law and the M.P.C. it is a strict liability crime to rape a girl under the
age of ten. It is questionable whether it is a strict liability crime to attempt to rape a girl under
the age of ten. Jurisdictions are split on this issue, although let's assume that we are in a
jurisdiction where there can be an attempt of a strict liability crime. Roger had the mens rea for
a worse crime than he actually committed (the attempted rape of a nine-year-old), and he had the
actus reus of attempting to rape a twelve year old which is also a crime, simply a less serious
one.
Roger may attempt to argue factual impossibility, although factual impossibility is not a
defense under the common law or the Model Penal Code. Therefore, he could be convicted of
attempted statutory rape in a jurisdiction that allows for the conviction of an attempt of a strict
liability crime. Roger could also attempt to argue hybrid legal impossibility, which is a defense
under the common law but not under the Model Penal Code. Note that even if he argued hybrid
legal impossibility under the common law, he could still be found guilty of the less serious
crime: the attempted rape of a twelve-year-old.
Note that this scenario is a reverse of the legal wrong doctrine. Under the legal wrong
doctrine, the defendant commits the actus reus of the more serious offense with the mens rea of
the less serious offense.
(ii) Impossibility with Regard to Dolls
As we have discussed elsewhere in this exam, Roger has another chance at the defense of
impossibility because Sally was a doll, not a human being. Whether or not a "double factual
impossibility" defense (with regard to age and "dollness") would have any success in lessening
Roger's culpability is an intriguing question.

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B) He thinks she is seventeen: Mistake of fact

(assuming Sally is human)
(i) legal wrong doctrine
(a) common law
According to the legal wrong doctrine, a defendant is criminally responsible for harm that
he unintentionally causes as the result of a reasonable mistake of fact if his conduct is illegal
based on the facts as he believed them to be. Thus, the defendant is guilty of the more serious
criminal offense x (in this case, Roger's attempted rape of a nine-year-old), despite a reasonable
mistake of fact, if he would be guilty of a different, albeit lesser, crime Y (in this case, Roger's
attempted rape of an adult woman) if the situation were as he supposed. Thus, he will be
convicted of the more serious offense: crime x. By acting in a way that he knew constituted a
crime, Roger assumed the risk that, unbeknownst to him, the facts were such that his conduct
constituted the more serious crime.
(b) M.P.C.
In a variation on the common law legal wrong doctrine, the Model Penal Code provides
that the defense of mistake of fact is not available if the actor would be guilty of another offense
if the facts were as he supposed. Unlike the common law rule, however, in which the defendant
could be convicted of the higher offense in such circumstances, the Model Penal Code approach
is to convict of the lesser offense. Thus in Roger's case, if he attempts to rape a girl who is age
twelve but whom he believes is age seventeen (an adult woman who can legally consent to
intercourse), he would be punished as though he attempted to rape a seventeen-year-old. By
convicting and punishing the defendant at a level consistent with his mental state although the
harm committed was more serious, the Model Penal Code avoids the danger of disproportionate
punishment that is characteristic of the common law rule. Note also that the mistake of fact for
the specific intent offense of statutory rape can be reasonable or unreasonable.
(ii) moral wrong doctrine
The moral wrong doctrine does not really apply here. According to the moral wrong
doctrine, the defendant is criminally responsible for harm that he intentionally causes as the
result of a reasonable mistake of fact if his conduct is immoral based on the facts as he believed
them to be. The moral wrong doctrine does not apply because it is quite clear from the facts that
Roger's conduct is illegal based on the facts as he believed them to be. If Roger were asked the
question, "What is it that you thought you were doing?," he would have answered, "I thought I
was attempting to rape a seventeen-year-old." Contrast this with the scenario in Regina v. Prince
where what Prince thought he was doing was immoral, but not illegal.
(ii) Impossibility with Regard to Dolls
This issue is discussed above and elsewhere in this exam.

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Question 5: Change of facts

Betsy was human
Rape involves five elements; sexual intercourse, consent, force, the defendant's mens
rea, and the floater resistance. According to the facts, Betsy offered no verbal or physical
resistance and only kept repeating "I'm having a great time, you're wonderful." Her lack of
resistance coupled with her words might lead a court to believe she was consenting to the act.
In fact, it was her lack of nervousness as well as resistance that led Roger to stop the act. Even
under the MTS standard, Roger would probably not be found guilty despite the fact that the
MTS court focuses on the perpetrator's state of mind. According to the MTS court, permission
can be inferred form the surrounding circumstances and the victim's actions. A reasonable
person would probably conclude that Betsy was giving implied permission to Roger to commit
the act. A similar conclusion would result from an analysis of MPC 213.1.
Question 6: The Death penalty
Roger
Roger may be eligible for the death penalty for killing Jane under both the common law
and the Model Penal Code. To be eligible for the death penalty under both the common law and
the Model Penal Code, Roger must have at least one aggravating circumstance and no
mitigating circumstances "sufficiently substantial to call for leniency." An examination of
MPC 210.6, Sentence of Death for Murder, shows that, given the facts as we know them,
Roger may be eligible for at least three of the eight aggravating circumstances that are listed:
(d) The defendant knowingly created a great risk of death to many persons.
Although it is unclear from the facts the extent of Roger's threat, it is clear that he was exhibiting
bizarre and dangerous behavior in a room full of many people. This aggravating circumstance
could at least be mentioned as a possibility.
(e) The murder was committed while the defendant was engaged or was an
accomplice in the commission of, or an attempt to commit, or flight after committing or
attempting to commit robbery, rape or deviate sexual intercourse by force or threat of
force, arson, burglary or kidnaping. It could be argued that Roger murdered Jane during the
attempted commission of a felony - rape. If this argument is successful, Roger could be
convicted of felony murder, an aggravating circumstance.
(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional
depravity. This circumstance could apply to Roger's murder of Jane, a baby, based on the facts.
"Roger shook Jane violently until her sobbing ceased and she was unconscious. At that point, he
threw her on the floor. Jane died seventeen hours later."

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If Roger has a history of convictions (which is quite possible given "Roger's history of
boasting that he could force any woman to do anything sexually"), this could also an aggravating
circumstance depending on the nature and extent of his history. Note that two aggravating
circumstances pertain to a history of convictions:
(a) The murder was committed by a convict under sentence of imprisonment.
(b) The defendant was previously convicted of another murder or of a felony
involving the use or threat of violence to the person.
Note also that it could be a mitigating circumstance if Roger did not have a significant
criminal history, the court found that he was mentally imbalanced or impaired, that he felt
justified for some reason, that he was young, or that he was intoxicated. Based on the facts or
what little we know of them, Roger could possibly be eligible for five of the eight mitigating
circumstances that are enumerated under 210.6:
(a) The defendant has no significant history of prior criminal activity.
(b) The murder was committed while the defendant was under the influence of
extreme mental or emotional disturbance.
(d) The murder was committed under circumstances which the defendant believed
to provide a moral justification or extenuation for his conduct.
(g) At the time of the murder, the capacity of the defendant to appreciate the
criminality [wrongfulness] of his conduct or to conform his conduct to the requirements of
law was impaired as a result of mental disease or defect or intoxication.
(h) The youth of the defendant at the time of the crime.
A similar kind of analysis can be conducted under the Georgia death penalty statute
discussed in McCleskey v. Kemp.
If Roger had been an African American, the statistics presented in McCleskey v. Kemp
demonstrate that he would be substantially more likely to receive the death penalty relative to a
white defendant, if Jane were white. This disparity remains even though the statistics presented
accounted for severity of the crime, aggravating and mitigating factors, etc.

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Question 7: causation
(a) common law
Roger could be seen as the "but for" cause of Jane's death. But for his shaking Jane she
would not have died of shaken baby syndrome. However, now it is not certain if his action was a
sufficiently direct cause of death. Arguably, since Tammy could have saved Jane and had a legal
duty as her mother to do so, maybe her action was a gross and bizarre intervening act. Her
action was an unforeseeable event rendering Roger not to be the proximate cause of death. Thus,
under the common law, it is unclear whether Roger would be found guilty of homicide.
(b) M.P.C.
Here the question is whether Roger's act was too remote from the result. Tammy had a
legal duty as Jane's mother to act. Since she did not, but rather stayed to help clean the carpet,
Roger's action may be too remote from the result. Thus, under the M.P.C., although Roger was
the but for cause of Jane's death, it is not entirely clear whether Roger would be found guilty of
homicide.
Question 8: The facts continue
(1) Capwood: Assault with intent to kill
(i) offense
Capwood hit Tammy's husband with a karate blow. This is an assault. The fact that it
was to the head could demonstrate a further intent to kill. The husband's attacking with his fists
is probably not enough to turn his assault into an assault with intent to kill.
(ii) defense
Capwood can argue that he acted in self defense.
(a) common law
In order to use deadly force Capwood must have been faced with an unlawful, imminent,
deadly force threatened by another. The husband bursting into the room and attacking with his
fists may not constitute deadly force. Since Capwood's response of deadly force (if the court
would consider it to be such) may have been unreasonable, he would be left with an imperfect
defense. The issue is whether Capwood is the aggressor. Since he was in the husband's
bedroom with the husband's wife it could be argued that he is the aggressor. If this is true then
Capwood had a duty to retreat. The husband did not have such a duty because he was in his own
home. Capwood's counter argument is that he was invited and that he may have reasonably
believed that the husband's attack was deadly.
(b) M.P.C.
Under the M.P.C., the defender may have a subjective belief that he was faced with
grievous death or serious bodily injury. Capwood can claim that since he was with the husband's
wife he feared that the husband was attempting to kill him with his fists. Thus, Capwood may
have a better chance under the M.P.C. of successfully employing this defense.
Note, however, that with regard to the husband's use of deadly force under
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3.04(2)(b)(ii)(1), "(b) the use of deadly force is not justifiable if . . . (ii) the actor knows that
he can avoid the necessity of using such force with complete safety by retreating . . . , except
that: (1) the actor is not obliged to retreat from his dwelling of place or work, unless he is
the initial aggressor. . . " Thus, relative to Capwood, the husband need not retreat if he never
was, or is no longer considered to be, the aggressor.
Under both the M.P.C. and common law, Capwood compounded his possibility of being
convicted of a crime because he left the husband after he injured him. After he created the risk
to Tammy's husband he had a legal duty to aid him. Since he did not, he can be responsible for
the subsequent injuries that occurred as a result of his failure to fulfill his legal duty.
(2) Tammy's liability
Since Tammy did not create the danger to her husband she did not have the same legal
duty as Capwood. However, under both the common law and the Model Penal Code, she might
be prosecuted under the status relationship category of omissions because she had a legal duty
to help her husband. Tammy, however, would probably not be guilty as an accomplice to
Capwood. Based upon the facts that are presented, it appears that she did not actually do
anything in terms of the crime.
Question 9: Change of result
Simon dies
(1) Capwood- Homicide
Instead of Capwood being guilty of attempted homicide, he could be found guilty of
homicide. The facts state that Simon died as a result of the stab wounds. The only question is
whether six months is too remote from the act (it would not be under the common law's year and
one day rule), or whether there were other bizarre and intervening forces which Capwood could
not foresee (e.g., a doctor deliberately uses a contaminated knife when operating on Simon and
Simon's stab wounds become mortally infectious as a result).

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(2) Roger- felony murder

(a) common law
If Simon is considered a co- felon of Roger in the death, and it is considered in the
furtherance of the felony of attempted rape, then Roger could be responsible for Simon's death.
However, Capwood is a non- felon in a non- felon death. Co- felons are held responsible under
the proximate cause doctrine if they set the act in motion. Here it seems that Roger set the act in
motion because Simon only got involved to save him. However, as was mentioned, Capwood is
a non- felon. The agency theory excludes the deaths caused by non- felons. The proximate
cause theory, however, does include the deaths of non- felons. Under this theory, since Roger
set the events in motion that led up to the death, he could possibly be found guilty of felony
murder.
(b) M.P.C.
Under the M.P.C. Roger could argue that he did not have the requisite intent necessary
for a murder conviction. He never intended that Simon be assaulted, let alone be killed. He
would thus have a better chance under the M.P.C. of being acquitted.

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Student Answer to Spring 1993 Criminal Law Exam

(Footnotes refer to Professor Denno's comments).

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Question 1
Rape(Roger)
1st degree:
Act: vaginal intercourse
Mens Rea: silent
Attendant Circumstances: Force or threat of force, deadly weapon, threatens "suffocation or
strangulation"
2nd degree:
Act: vaginal intercourse
Mens Rea: silent
Attendant Circumstances: Another person, against the will, without the consent of the other
person.
Under the common law rape is a general intent crime. Here the statute looks at six
sources for help in interpretation:
(1) legislative history
(2) statutory construction
(3) judicial discretion
(4) morals and social policy
(5) assumption of the risk by defendant
(6) the nature of the crime
Typically in rape, the act has an "intent" mens rea. However the problem is the mens rea to be
applied to the attendant circumstances such as force, lack of consent, and another person.
Factual Analysis:
Under both 1st and 2nd degree rape it seems like Roger had the intent to engage in
vaginal sexual intercourse with Betsy and Sally. He led Betsy to the coat room, and slammed
her hard against the wall, and pressed her arms so she couldn't move however he never had
vaginal intercourse with her. He said "lady, you're a drag" and he left. So although he gripped
her throat ("strangulation") he did not have vaginal intercourse. It seems like this might be
enough for first degree rape, but it was uncompleted. Additionally, the same problem holds true
for 2nd degree rape because there was no vaginal intercourse. In terms of Sally, he "ripped off
her pants" but again he did not have sexual intercourse with her. Furthermore, they were dolls
not women so rape was impossible but, attempted rape is a crime we could charge him with
(described in Question 2).
Under the Model Penal Code (MPC) because the statute is silent, we can use 2.02(3) to
read in a mens rea term of purposely or knowingly to the act of intercourse and recklessly or
above for the attendant circumstances. Here there seems (as discussed in the common law)
evidence of force, however you can only rape by threat of extreme force which is threat of death,
serious bodily injury, or extreme pain or kidnaping. In Betsy's case it can be argued that
"strangulation" was enough force, but ripping Sally's pants off may not be enough force for rape
under the MPC.

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Finally, there was no vaginal intercourse, and in terms of the attendant circumstances of
"another person" or without consent of another person, Sally and Betsy were not people. Maybe
we could charge him with attempted rape or deviate sexual intercourse, or sexual assault, but in
all these cases we do not have a person.
In terms of the first degree rape, it does not mention a person, note under both the MPC
and common law, there was no vaginal intercourse, so maybe here we could try attempted rape.
The second degree rape, has the term "another person" and neither Betsy or Sally are people.
Statutory Rape- Roger
Act: sexual intercourse
Attendant circumstances: a girl under age
2nd degree-Rape
Act: sexual intercourse
Attendant circumstances: girl age 10-16.
Again the mens rea terms is silent under the common law, statutory rape is strict liability
so that there is no mens rea term toward the attendant circumstances regarding the girl's age.
Whether or not the defendant was mistaken to her age is irrelevant. In terms of a mens rea to
sexual intercourse it is usually some type of intent. Here, Sally is age 12. Simon tells her she is
12, and Roger notices she is very small and she is frightened. Since she is 12 years old, Roger
can only be convicted of statutory rape in the second degree. Here the issue will become is
there strict liability as to Sally being a girl. Sally is not a girl but a doll, so he does not have
intercourse with her, yet he does think she is a girl so he has the mens rea to complete the act,
but does not do so because of impossibility. We can try him for attempted statutory rape. 9
Under the MPC, since this is a silent statute we would read in purposely or knowingly
for the act of sexual intercourse, and recklessly or above for the attendant circumstances.
However, since this is statutory rape, the MPC provides for statutory rape as sex with a girl less
than 10. Here Sally is over 10, she is 12. Under the MPC this would not be statutory rape.

Problems w/attempting a strict liability offense unless you consider it not to be a strict liability offense, which you
seem to do.

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Homicide-Roger
Act: causing
Mens rea: purposely, knowingly, recklessly, or negligently
Result: death
Attendant Circumstances: of a human being
Causation: cause
Common law- "but for" and proximate cause
Act: causing
Roger must act with any of the 4 mens rea terms to hurt Jane. Here he picked up Jane,
shook her violently and threw her on the floor. In terms of the act and causation, "but for" Roger
shaking Jane she would not have died, and his shaking her was a direct cause of her death. In
terms of the attendant circumstances (a human being) he had to be at least negligent as to Jane
being a human. Here she was sobbing, and a reasonable person may have recognized she was a
human being. In terms of a result, there is a dead body.
The issue here under the common law (CL) is that the intent to inflict grievous bodily
harm can be murder, unlike the MPC, so that even if Roger did not intent to kill Jane, or have a
reckless indifference to life, shaking her so hard could demonstrate a desire to kill Jane, which is
enough for murder under the CL. Furthermore, murder under the CL requires malice
aforethought. Here it may be questionable if there was malice aforethought so that Roger could
get manslaughter.
Under the MPC, the intent to inflict grievous bodily injury is not recognized as a intent
for murder, only killing purposely or knowingly, or with reckless indifference for human life.
Here, the same facts apply as above, and Roger could be convicted for homicide due to the
shaking and throwing of Jane on the floor. This could be extreme indifference to life.
Furthermore, causation differs under the MPC in that actual "but for" causation is used; then we
look at the type of injury this type of conduct should induce, and if it is too remote from the
conduct. Here but for shaking Jane and throwing her she would not have died, this is the type of
injury that would result, and it is not too remote (unless 17 hours is too remote).
Assault w/the Intent to Kill (Roger/Capwood)
This is a specific intent crime. Roger must have the mens rea for the assault, and the
further intent to kill. Here Roger lunged at Capwood, with his fists barred. So this could be
under MPC and CL assault with intent to kill.
Accomplice liability- (Simon)
Under the common law because Simon "encouraged" Roger to meet Betsy, "winking" at
Roger and telling him Betsy would do anything he wanted Simon could be considered an
accomplice and responsible for the natural and probable consequences of Roger's conduct. To
be an accomplice, Simon must have 2 mens rea's, intentionally engaging in acts of assistance and
aiding in fact with the minimum culpability requirement for that offense. Only if the principal is
convicted can the accomplice be convicted.

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Here did Simon "aid in fact"? Is verbal encouragement enough to get him for statutory
rape, felony murder, or attempted rape? In Sally's case Simon told Roger "go get her, she's only
12 but what the heck." If verbal encouragement is enough maybe Simon could be an
accomplice for attempted rape for both Sally10 and Betsy, but due to the doll issue, he may get
attempted rape. Simon was not the actor in the Jane homicide, however if Simon was an
accomplice he could be guilty of felony murder.
Under the MPC, to be an accomplice one must have 2 intents, the intent to engage in acts
of assistance which only involve attempting to aid, a lower standard, and the further intent to
see the act assisted in completed. Because the MPC is a lower standard, Simon might be an
accomplice for verbal encouragement, whereas under the CL, he may not have aided in fact.
Thus, Simon could be guilty of felony murder.
Felony murder under the common law is a strict liability offense so that if Simon is
found guilty he has no defense. Here the underlying felony, is attempted rape or rape under the
traditional common law any felony will trigger it. In some states, the felony must be enumerated
in the statute. Rape or attempted rape is usually enumerated.
In some states (Cal.) they use the inherently dangerous felonies as the ones where they
apply the Felony Murder rule. They use two approaches, the abstract approach and facts of the
particular case. In the abstract approach, rape is inherently dangerous and in the facts of this
particular case, rape is also dangerous. The felony of rape does not merge with the murder of
Jane so that they are sufficiently independent allowing Felony Murder to be triggered.
However, here the limiting doctrine of causation may apply. Even though Simon
encouraged Roger, Roger's reaction to the dolls could be considered a gross and bizarre
intervening force so that Simon did not cause Jane's death. Thus Simon may argue that Felony
Murder should not be triggered.
The MPC retained a Felony Murder rebuttable presumption of guilt. Here Simon could
offer evidence to show that Jane's death was not in furtherance of the rape which Simon was
aiding, and that her injury was remote so that maybe Felony Murder should not be triggered.
Note, that rape is an enumerated felony under MPC.
Assault with Intent to Kill
Simon did not hit Capwood or Jane so that he did not commit this offense. The only
issue would be if Simon was an accomplice in this act (Pinkerton Doctrine), in that Capwood
getting upset was a natural and probable consequence of attempting to rape his dolls. The MPC
does not recognize the Pinkerton Doctrine and may say this conduct is too remote from the
verbal encouragement for rape.

10

However Simon differs because he didn't have the second intent; he knew they were dolls.

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Capwood
The rape offenses do not apply to him. Here Capwood could be tried for attempted
homicide. Under the common law, attempt requires two intents, the intent to engage in the
conduct and the further intent to complete the targeted offense. Note, in terms of mens rea,
running to the bar and getting a knife shows the intent to engage in stabbing with a knife, and
stabbing with a knife shows the intent to kill. In order to determine if a substantial step has been
taken the CL applies one of six tests:
1. Last Proximate Act - Did the defendant take the last step to commit murder? Here
Capwood grabbed a knife and lunged it into Simon's heart, the last proximate act to homicide.
2. Indispensable Element - Did the defendant have all the tools necessary to commit
homicide? Yes, here Capwood had the knife.
3. Dangerous Proximity - Was Capwood in temporal and spatial proximity to
committing the offense and does homicide induce particular apprehension? Yes, Capwood was
right in front of Roger stabbing him, and homicide induces a lot of apprehension.
4. Physical Proximity - This is the most popular test. Was Capwood in geographical
proximity to Roger and did he have the power to complete the act? Yes, Capwood was in front
of Roger with a knife, and stabbed him in the heart.
5. Unequivocality Test - (Res Ipsa) Would a reasonable person believe Capwood had
taken a substantial step? Here it seems like stabbing someone in the heart is a substantial step.
6. Probable Desistance - Was the defendant past the point of no return? Yes, stabbing in
the heart was a final act.
Thus, under any of the tests, Capwood could have taken a substantial step and be found
guilty of attempted homicide.
MPC
Also requires 2 mens rea. One for intent to engage in the conduct and the other to intend
to complete the target offense (see fact analysis). In terms of a substantial step, MPC looks for
evidence strongly corroborative of the defendant's criminal intent. The code gives suggestions,
but here going after Roger with a knife and stabbing him would probably be enough for
attempted homicide.
Assault with Intent to Kill
From the above analysis, it seems that this was not an attempt to kill, under both the
MPC and common law Capwood has assaulted Simon with a knife in the heart. This seems like
an assault. The further intent to kill seems evidenced by the attack.

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Question 2
Attempted Rape (Roger & Simon)
Since Roger could not have sexual intercourse with the dolls, we could try for an
attempted rape on Betsy and Jane. Applying the tests outlined in Capwood's homicide, it seems
like Roger ripped Sally's pants off and would have raped her had she been human. Depending
on how close he came to penetrating her, he may have been in dangerous proximity and physical
proximity to committing rape. However, he may not have committed the last proximate act,
penetration, or had passed the point of no return. He did have the intent to rape her, but could
not do so.
In terms of Betsy, it is not clear that Roger had the further intent to complete the targeted
offense since he left because she was a drag. Under the MPC, because the code looks at intent,
in terms of Sally, Roger had the intent to commit a crime, but it became impossible to do so.
This may be enough for attempted rape, attempted deviant sexual intercourse, attempted sexual
assault, or corruption of minors.
In terms of the MPC, because Sally was 12, and Roger was probably 4 years older, he
could be charged with corruption of minors.
Sexual Assault - (Roger)
Offensive contact with another person. He attempted and did touch Sally & Betsy even
though they were not people.
Conspiracy - It does not seem there was evidence of an agreement.
Question 3
Defenses:
Roger - Insanity
Roger can argue that when he found out about the dolls not being human he became
insane at that moment.
MNaghten Test:
The defendant does not know the nature and quality or wrongfulness of his acts,
cognitive impairment only. Roger can argue that he did not know what he was doing when he
picked up Jane or went after Capwood.
Irresistible Impulse:
The defendant could not control his behavior he had an irresistible impulse (volitional
branch). This is used in conjunction with MNaghten. Here Roger argues he couldn't control
hurting Jane and hitting Capwood.

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Durham Test:
"But for" test. But for the mental disease he would not have done this. This has both a
cognitive and volitional branch, and is no longer used.
Federal or Appreciation Test:
Does not apply because this is not a federal crime. Does not appreciate the nature or
quality of his acts (cognitive branch).

MPC(A)Cognitive branch - Lacks substantial capacity to appreciate the criminality of the acts.
(B)Volitional branch - Lacks substantial capacity to conform behavior.
Here the MPC is a lower standard, since Roger did not appear to comprehend Simon or
anyone else yelling at him, maybe under the MPC insanity would work, whereas the CL applies
a stricter standard.
Diminished Capacity (DC)
A weaker insanity claim, however DC can be a case-in-chief defense, a true defense, or
partial defense. Because of the realization Roger was hitting on women, he can claim his
capacity was diminished. It seems Roger was under extreme emotional distress (EED), but a
reasonable person would not go after the baby.

Voluntary Intoxication (case-in-chief defense)

Since Roger was at a party maybe he was drinking. Under the common law homicide is
murder with malice aforethought Roger's possible drinking may negate the requisite intent. The
partial defense of voluntary intoxication would reduce murder to manslaughter.
MPC
Under the EED test, Roger can argue he was under EED, (subjective prong) and the issue
becomes whether a reasonable person from Roger's viewpoint would be extremely emotionally
distressed. Murder is a specific intent offense so Roger can use the defense if it negates his mens
rea.

Impossibility
Both the CL and the MPC abolished factual impossibility. Roger will say that he could
not attempt to rape Betsy or Sally because they were dolls. But if the facts were as Roger
believed them to be, he would have been committing a crime, so this is factual impossibility and
not a defense.
Mistake of Fact( MOF)
Roger could try to argue MOF, but that won't work because MOF applies when the facts
were as defendant believed them to be he would have committed no crime.

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Provocation
Under the common law Roger could argue that the dolls not being human was adequate
provocation and in the heat of passion he did this. (Again, this may not be adequate
provocation).
Simon
In terms of felony-murder he will argue lack of causation (as previously addressed) so
that Roger's conduct was gross and bizarre behavior.
Accomplice Liability - (Mens Rea)
Simon will argue that the attempt to hurt the dolls was not as a result of his
encouragement. Simon will argue he had no mens rea to complete the targeted act of rape
because he knew that Betsy & Sally were dolls. Furthermore Sally said "don't hurt anyone
anymore" and thus tried to get Roger to stop.
Abandonment
If Simon's actions were considered the acts of an accomplice he will say he tried to
abandon it by telling Roger to stop. (This may be too late).
Capwood
Provocation - (partial defense)
He will assert CL provocation that ruining the party and the destruction angered him and
thus, in the heat of passion he did this to Sally.
EED/ Diminished Capacity
MPC- Under the EED, Capwood will argue that he should have a partial defense because
his capacity was diminished by all the havoc Roger caused.
Insanity
Tests applied under Roger. Here Capwood can argue he could no longer appreciate his
actions. Under the MPC he would have the best chance of success.
Question 4
(a) Sally-nine
Since statutory rape is strict liability under the CL and MPC (less than 10), Roger could
be convicted of statutory rape. However, he never had intercourse with Sally so that would
probably be attempted statutory rape. Under the MPC we look at the mens rea of the defendant,
and note here Roger was committing a crime and had the required mens rea.

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(b)Statutory rape
Sally-seventeen
Under the CL we could apply the legal wrong doctrine which says that what Roger was
doing was legally wrong so he took the risk it would be a worse crime,11 or the morally wrong
doctrine which says what he was doing was morally wrong, so as an immoral he took the risk of
her age. These doctrines look at the act (Sally being 12) and would convict for the act done and
not what the actor thought. Roger can claim MOF but since rape is general intent it must be
reasonable. Here he thought she looked young, furthermore, statutory rape is strict liability so
he may have no defense at all. Under the MPC, Roger could have a MOF because if the facts
were as he believed them to be he'd have committed no crime at all, and have no mens rea.
Question 5
If Betsy was human, the issue may come down to resistance. The facts say Betsy did not
"resist at all" and didn't appear nervous Betsy merely said, "I'm having a great time, you're
terrific". If Betsy was human this might be construed as consent. Rape involves 5 elements:
sexual intercourse, lack of consent, force, defendant's mens rea, and the floater resistance.
Courts may read in or out requirements so that the lack of resistance affects whether she
consented. Here, the lack of resistance coupled with her words may show that she was
consenting.
Question 6
Roger may be eligible for the death penalty for killing Jane. Furthermore, this killing
was committed during the commission or attempted commission of a felony-rape. This is an
aggravating circumstance. To get the death penalty, there must be at least one aggravating
circumstance and no mitigating circumstances.12 Issues as to his sanity can be mitigating
circumstances. If he had a history of convictions, that is an aggravating circumstance as well.
Unfortunately, being black, if Jane was white Roger may have a higher probability of getting the
death penalty because a disproportionate number of black men get the death penalty for killing
white people.
Question 7
Causation
Common law - Looks at the "but for" cause of death. "But for" his shaking of Jane she
would not have died of shaking baby syndrome. However were Roger's actions a sufficiently
direct cause of death? Maybe not since her mother could have saved her, but decided to clean
the carpet. The mother's actions were gross and bizarre intervening force, an unforeseeable
event, rendering Roger not a proximate cause of the injury. Thus under the common law, Roger
may not be guilty of homicide.

11
12

However, it is not clear that R thought his conduct was illegal based on the facts as he believed them to be.
Mitigating circumstance must be sufficiently substantial to call for leniency.

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Under the MPC, it applies the actual but for causation; it looks at the type of injury this
type of behavior induces and whether the injury was too remote from the conduct. Here, maybe
Tammy's failure to take Jane to a doctor (a legal duty on her to act) makes Roger's actions not
the actual cause of Jane's death because his actions are too remote from her resulting death. The
mother had the duty to take her for help, thus maybe Roger is not responsible for homicide.
Question 8
Capwood hit Tammy's husband with a karate blow to the head, this blow is an assault and
the fact it is to the head, shows a further intent to kill. However, Capwood may argue self
defense because he was being attacked by Tammy's husband.
Common law - To use self defense it must be in response to imminent, deadly, unlawful
force. Deadly force includes threat of death or serious bodily injury. The husband bursting in
the room and hitting with his fists may not constitute sufficiently deadly force. Additionally,
Capwood could be seen as the aggressor because he was in the man's bed, and the man did
not have to retreat in his home. Arguably, Capwood would say he was invited. Also, under the
CL Capwood's belief in the need for self-defense must be reasonable for it to be justified. Here
the use of fists may not make his decision to respond with deadly force reasonable so that the
defense would fail. Some jurisdictions allow for a partial defense of imperfect self- defense.
Under the MPC, the requirement of imminence is dropped, the force threatened can be
(deadly, grievous injury, forcible rape or kidnaping) and the belief of need of force is subjective.
Here Capwood may have a better defense because the use of fists may not be deadly force, but
since his belief was subjective, the defense may be a true justification under the MPC.
Furthermore, Capwood has a legal duty to aid her husband after she created the risk under both
the MPC and CL. Capwood should not have left the husband there. Thus, he could be
responsible for the subsequent injuries as a result of his failure to act.
Tammy
Under the common law and MPC, Tammy has no legal duty to act, unless under the
"status relationship" category as a wife. Maybe because this is her husband she has a duty to
help him, and can be responsible for his injury. In terms of being an accomplice with Capwood,
she doesn't seem to be his accomplice in assault with intent to kill since she was just lying in bed
with him.
Question 9
Capwood could now be tried for homicide instead of attempted homicide since Simon
died as a result of the injury he inflicted. Roger could be liable for Felony Murder. If Simon is
considered a co-felon of Roger's and the death is considered in furtherance of the felony of rape
under some doctrines Roger could be responsible.

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Capwood is a non-felon. In non-felony killings, co-felons can be liable for death of other
co-felons under the proximate cause theory. If the co-felon set the situation into motion. Here, it
seems that Roger set the scene in motion since he went after Capwood with fists and Simon got
involved to save him. However, under the other proximate cause theory, co-felon deaths are
considered justifiable and the felony-murder rule is not triggered. The agency theory excludes
the deaths of co-felons so Roger would not be responsible under the felony murder rule.
Under the MPC, there is a rebuttable presumption of recklessness, and thus murder so
FM could be triggered. However, Roger could show evidence that he did not have the intent to
hurt Simon and Capwood's response was a gross and bizarre intervening act.

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FALL 1993 CRIMINAL LAW EXAM

- 44 -

FORDHAM UNIVERSITY SCHOOL OF LAW

EXAMINATION IN CRIMINAL LAW
THIS EXAMINATION HAS 3 PAGES
THIS IS A TWO HOUR EXAMINATION
THIS IS A CLOSED BOOK EXAMINATION
NO MATERIALS MAY BE USED

DIRECTIONS:

DATE: December 15, 1993

EXAM NUMBER:
CLASS SECTION
PROFESSOR DENNO
PART II OF TWO PARTS

YOU MUST INSERT YOUR IDENTIFICATION NUMBER, YEAR

AND SECTION, AND PROFESSOR'S NAME ON EACH BLUEBOOK
AND ON THE EXAMINATION PAPER ITSELF.

This examination consists of one fact pattern followed by three questions. I have not weighted
the three questions according to time or points because part of what I will be examining is your
ability to determine which topics may need more time or explanation.
1.
Write your identification number, class section, and Professor's name on each bluebook.
Do not write your name on any bluebook or on the examination paper itself.
2.
Please number each bluebook sequentially. For example, if there are three bluebooks,
number the first 1 of 3, the second 2 of 3, etc.
3.
Read each question carefully before you begin to write. Answer the question according
to the facts presented.
4.
Please write legibly and use every other line. I can only give credit for what I can read.
5
If you think it is necessary, state assumptions or additional assumptions of fact not
contained in the questions or facts, but which you think are appropriate to answer the questions
more fully.
6.
Take special note that for each offense mentioned, I ask that you discuss the possible
outcomes under both the common law and the Model Penal Code. As a summary of your
analysis, note how the results would be similar or different depending on whether you were
applying the common law or the Model Penal Code.

* * *

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Tom, Sally, Beth, and Gladys, friends who had never had sexual intercourse with one
another, had dinner one evening in Tom's apartment. After dinner, Sally was told by Beth that
she and Tom wanted to have dessert. When Sally inquired what the dessert was, Tom responded
that it was her. Sally, terrified, asked Beth what she wanted. Beth responded by pointing her
index finger at Sally's head, stating that she wanted Sally to have sex with Tom. At this point,
Tom was removing his pants. Despite Sally's screams and pleas, Beth continued to point her
index finger at Sally's head and said, firmly, "If you don't have sex with Tom, I will blow your
brains out." At this point Gladys yelled to Sally, "Beth will blow your brains out if you don't
have sex with Tom. Do it Tom, do it."
Motivated by fear, Sally proceeded to undress. Tom started to aid Sally to undo the
buttons on her blouse because her hands were shaking. At this point, Tom groped Sally's body,
while she cried. "I know you want this, but you're just shy," Tom whispered in Sally's ear.
However, as Tom bent down to undo his shoes, Sally shoved him into Beth and Gladys. Sally
then ran to her purse, grabbed a .38 caliber that was inside it, and turned around swiftly stating,
"You people are jerks. You all know that I was brutally raped last year. You're taking advantage
of my weakness. I have a right to defend myself. If I don't do something to you now, you'll just
try to rape me again. I will never have any rest. I will always be vulnerable."
With that, Sally pointed her gun at Tom and instructed him to have sex with Beth. Beth
refused, claiming that Tom was a pig. Initially, Tom was also reluctant, stating that he also
found Beth unattractive. Eventually, Tom blurted out that Beth should have sex with him and
get it over with. With that, Tom proceeded to get on top of Beth and insert his penis into Beth's
vagina. After thirty seconds passed, however, Beth started screaming at Tom to get off her.
Perturbed, Tom continued, stating that they should make the best of the situation. After this
comment, however, Beth started hitting, shoving, and slapping Tom. Furious, Tom yelled at
Beth to stop hitting him, but Beth continued. Infuriated, Tom started smashing Beths head on
the floor until she became unconscious.
Sally yelled at Tom to stop, stating that she just wanted him to have sex with Beth, not
kill her. At this point, Sally turned to Gladys and instructed her to have sex with Tom. "No, no,"
Gladys screamed. Tom also encouraged Gladys to have sex with him. Petrified by the prospect
of being sexually and violently assaulted, Gladys told Sally that she rather die than have Tom
rape her. Handing Gladys her gun, Sally stated angrily, "Suit yourself. Your life has the least
value. You've always been a loser." Gladys put the gun in her mouth and pulled the trigger.
She died instantly.

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QUESTIONS
Tom, Beth, and Sally are each charged with none, one, or both of the following offenses.
a. Assault with intent to Rape: "Bodily contact with a woman not one's wife with the intent to
have non-consensual sexual intercourse with her."
b. Murder: "It is murder if one person kills another by an intentional act which she or he knows
to be likely to kill or to cause grievous bodily harm, although (s)he may not intend to kill or to
cause grievous bodily harm and may either be recklessly indifferent as to the results of her or his
act or may even desire that no harm should be caused by it."
Question 1
Analyze the likelihood of whether or not Tom, Beth, or Sally would be found guilty or
innocent of either of these two offenses under the common law AND the Model Penal Code.
Next analyze the possible defenses they may have.
Question 2
Are there any other offenses (which we studied) for which Tom, Beth, or Sally could
have been charged under the common law AND the Model Penal Code? Next analyze the
possible defenses they may have if there are any other offenses.
Question 3
Assume for the purposes of this question only that Gladys does not shoot herself. Instead
she experiences grievous bodily harm in her attempt to flee the apartment by jumping out of a
window as soon as Sally suggests that she have sex with Tom. Two weeks after her stay in the
hospital for her injuries, Gladys becomes extremely depressed over her physical and emotional
condition. She asks her uncle, Jack Konviction, to end her life. Jack does so by administering to
Gladys an entire tank of carbon monoxide. How would the results of Questions 1 and 2 change,
if at all, with this change in facts? In answering this question, address what liability Gladys may
or may not have had for the events taking place in Tom's apartment during the two week period
when she was alive.

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Student Answer to Fall 1993 Criminal Law Exam

(Footnotes refer to Professor Denno's comments).

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Question 1
(a) Assault with Intent to Rape
Act: Bodily contact
Mens rea: intent to have non-consensual sexual intercourse
Attendant Circumstances: woman, not wife
Common Law
This is a specific intent crime, intent to have non-consensual sex; however there is no
mens rea term modifying the beginning of the statute, so the Court would look at the following
factors in determining the requisite level of culpability:
1. legislative intent
2. statutory construction
3. judicial discretion
4. morals/social policy
5. assumption of risk
6. nature of crime
Because of the intent element and the nature of the crime, under the common law, the act
of bodily contact would probably be purposely (conscious object to have such contact) or at least
knowingly aware of such circumstances. As to the attendant circumstances of a woman and not
one's wife, the culpability level would probably be reckless or negligent. The mens rea would be
with specific intent which would probably be purposefully or with knowledge.
MPC
Under the Model Penal Code, intent usually is interpreted as purpose or knowledge; but
the statute is silent so we would have to use either 2.02(4), the Offense Analysis approach, and
apply the culpability level throughout the statute; or 2.02(3), the element analysis. As it's used
in Yermian the intent (purpose or knowledge) would refer to non-consensual intercourse, and
for everything else, reckless or above would be applied. Except that reckless can't be applied to
conduct, so under the MPC it would be: purpose or knowing as to bodily contact and to nonconsensual intercourse, and reckless or above as to woman and not one's wife.
Because Tom tried to have intercourse with Sally and did have intercourse with Beth, he
may be guilty of this crime in relation to both of them. First, we'll analyze with respect to Sally.
Although Beth pointed her "finger" at Sally and told her to have sex with Tom, he was a willing
party. The culpability levels are similar for the MPC and Common Law. Tom is at least
knowing that there will be bodily contact between him and Sally, and probably even purposeful
(it's his conscious object). He also is probably knowing that Sally is non-consenting, as she is
hysterical and pleading. (However it may be argued that Tom was only reckless or negligent as
Sally never actually said "No", and he thought that she was just shy). Tom may then argue under
the common law, that he didn't intend to have non-consensual sex with Sally. As to the attendant
circumstances, Tom was friends with Sally and so was at least reckless (consciously disregarded
a substantial risk) that Sally was a woman and not his wife.

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Tom would probably be guilty under the MPC, but may be acquitted under the common
law if he can argue that he didn't intend to have non-consensual sex with Sally. He may also
have other defenses available.
Mistake of Fact - Under the common law, this is a specific intent offense, therefore the
mistake may negate the required intent, even if the mistake is reasonable or unreasonable. If it
was a general intent offense, Tom may still be acquitted if his mistake was reasonable, but the
majority doesn't allow it for an unreasonable mistake. Even if the mistake was reasonable under
a general intent crime; however the court may decide to apply the moral or legal wrong doctrine
and find Tom guilty anyway. Most likely though, Tom would be able to use the common law,
specific intent mistake of fact defense.
Similarly, under the MPC, mistake of fact is a defense if it negated the mens rea portion
of the offense( MPC doesn't differentiate between general and specific intent). Tom might be
able to use this MPC defense to say his mistake, that Sally was consenting negated his mens rea.
Tom probably couldn't use the mistake of law defense, as there is no evidence that he was
mistaken as to the law in what he was doing.
Tom may try to argue necessity, duress, or self-defense, but with respect to his contact
with Sally, this defense probably wouldn't work because there is no evidence that his conduct
with Sally was necessary or done with a threat of force to him. (Tom may try to stretch it and
say that it was out of necessity or duress because Beth was threatening Sally, so it was a threat to
anyone which made his force necessary). These defenses will probably be more useful;
however, when we get to Tom's defenses with respect to Beth.
Beth - Once Tom started to have bodily contact with Beth, he was doing so because Sally
was pointing a gun at him. Under the common law and MPC, he probably initially didn't have
the intent to have non-consensual sex or even bodily contact with her, except that he was being
forced to. He probably therefore could have had an excuse. (He wasn't excited about it, but just
wanted to get it over with). However, once the initial penetration took place, he continued to
stay on Beth despite her pleas. It's not clear whether there was another act of penetration, in
which case, Tom could be guilty of rape. ( If his continuing on was another actual penetration
then there was a second act, which Beth didn't consent to). Also, if we stretch it, once Tom
knocked Beth unconscious, if there was penetration he would be having intercourse with a nonconsenting/ unconscious person under both the MPC and the common law. (Tom was also at
least reckless here again as to attended circumstances). Assuming that the initial act of
penetration was the only one, Tom probably wouldn't be guilty under the MPC or common law
because Beth initially was "consenting". If we assume that the first penetration was the only act
but that Beth wasn't consenting and Tom could be guilty; he would, however have a number of
possible defenses.

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Duress
Under the common law, the actor can use force if he reasonably believes that it is
necessary to prevent a human threat which is imminent, unlawful, and deadly. Because Sally
had a gun pointed at Tom, it satisfies all of these requirements. But, the actor (Tom) must not be
responsible for putting himself in the situation. Here we could argue that Tom put himself in the
situation (the harm done must also be the lesser of two evils, but Tom could probably argue that
his death would be a greater evil than rape)1 3 in the first place by attempting to rape Sally.
Under the MPC, this might be Tom's best defense because it is a broad one. The threat
need not be deadly or even imminent, and there need be no balancing of evils (not "net gain")1 4
Tom would probably be acquitted under MPC's duress defense. (Tom might also argue necessity
which has similar standards as duress. Under the MPC: however, the actor cannot even
negligently put himself in the situation; so this may not work. Also, necessity is a defense to a
non-human threat and probably wouldn't apply here). Also, if we find that Tom was negligent,
in putting himself in this position, none of the defenses would work.15 Beth and Sally each
might be guilty of assault with the intent to rape as accomplices or co-conspirators.
Beth - if Beth and Tom argued before the dinner, which evidence shows, they may have planned
this "dessert" then Beth may be liable as a co-conspirator.
Common law
A conspiracy is specific intent with 2 mens rea requirements: 1. intent to agree and intent
that the object of the agreement be satisfied. Beth probably intended both of these, thus there
was the required plurality. Under the common law, they both could be guilty once the agreement
was made; as there is no abandonment.
Under the MPC, they must act with purpose of promoting or facilitating a crime, and it
must include an overt act. Tom started the overt act, Beth may have been able to argue a
complete and voluntary abandonment under the MPC, but because she "egged on" Tom and does
not appear that she intended to abandon. Beth may similarly be liable for complicity, which
would merge into Tom's assault with intent to rape crime, and make her liable as an accomplice.

13
14

No not under duress.

No balancing of evils required under the common law either.

15

No, it depends on the crime with which he is charged. They could work if the culpability of the crime (mens rea)
is greater than his fault.
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Common Law
Common law conspiracy is derivative in nature, so Beth could only be guilty if Tom is.
Also, Beth must aid in fact and there's a question of whether her "encouragement" was enough.16
Because it's a specific intent crime, she would have 2 mens rea requirements: 1) must have intent
to do act and did, 2) must have mens rea of the lowest level of culpability required for the
offense. Beth, therefore would have to be purposely or knowingly helping, which if she argued
to she probably would have had. (Under the Pinkerton doctrine, Beth may then also be liable for
any other offenses committed by Tom- see question #2).
Under the MPC, Beth must have had the purpose of promoting or facilitating a crime. (If
she was an accomplice in the conduct, then she would also be an accomplice in the result if she
had the required mens rea). She would not however had to aid in fact under the MPC. Again,
under both she could renounce by thwarting tom's attempt or informing police, but there is no
evidence of that. It might also be argued that Beth was not actually an accomplice, but rather the
Principal, using Tom as an innocent instrumentality. (If this was the case, Tom may have an
additional defense). If Beth had actually had a gun, it may work, but because it was only her
finger, it's probably not viable.
Likewise, Gladys may have been an accomplice as she encouraged Tom's conduct, but
there is no evidence that she conspired with Beth and Tom.
Murder
Common law
Act: kill another by an intentional act
Mens Rea: know act is likely to kill or cause harm or reckless
Result: (know or reckless) death or harm
Because there are various mens rea elements, we have to look at them with respect to the
common law homicide. At the common law, it's a killing of another human being unjustifiably,
inexcusably and without any mitigating circumstances, done with:
1) intent to kill
2) intent to inflict grievous bodily harm
3) extreme recklessness
4) in commission of a felony-murder
Sally did not do an intentional act which she knew was likely to kill Gladys, as Gladys
killed herself, but she may have showed at least extreme recklessness. The question though is
of causation- whether Sally caused Gladys' death. Sally probably was not the "but for" cause in
the strict sense; except that "but for" her actions, Gladys probably wouldn't have killed herself.
Her action was an intervening voluntary action which would break the causal chain, but Gladys
was under the dominion and control of Sally when she killed herself. Like the Stephenson case,
causation can be shown. Likewise, under the MPC, Sally would be the "but for" cause. Also,

16

This is incorrect, complicity is not a crime.

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under the MPC aiding and causing suicide is a felony if Sally caused Gladys to kill herself. Sally
's best defense would be either that she was insane or had a diminished capacity.
Insanity
Common law- 3 tests:
1. MNaghten - Defendant (D) didn't know the nature and quality of the act or that it was wrong;
total cognitive impairment - Sally might argue that she didn't know that what she was doing was
wrong or that it would cause Gladys' suicide.
2. Irresistible Impulse - D couldn't control or resist his actions - total volitional impairment Sally may argue she had no free will once they tried to rape her, it became an impulse.
3. Durham/Product test - This might have been the best test, that "but for" Sally's mental
disease she wouldn't have acted that way, but it is no longer used.
MPC test - Combines both the volitional and irresistible impulse and cognitive of M'Naghten.
D lacked the substantial capacity to appreciate the wrongfulness or criminality of her conduct.
This is the broadest test because D must only lack substantial capacity(not total impairment) and
must only appreciate (not know) and probably Sally's best defense. Another similar defense
would be diminished capacity.
CL- Specific intent would negate Sally's mens rea.
MPC - extreme emotional disturbance for which there's a reasonable excuse or explanation.
Sally could (probably successfully) argue that because they were trying to rape her, and because
she had been brutally raped before she was emotionally disturbed (excuse). This would also
probably keep her out of a mental institution for life (which insanity defense might subject her
to). Sally might also use this defense to lessen the charge of murder to manslaughter. Or under
the common law, could argue that it was voluntary manslaughter (not murder) because of "heat
of passion", if she could prove that there was adequate provocation (the prior rape and current
assault attempt) and no time to cool off.
Self Defense - Sally may also argue self-defense for holding a gun to Tom and Beth.
CL - Must be necessary for imminent deadly force. This may be stretching it, but when Sally
pushed Tom off of her, she might have believed that Beth had a gun and that she was in
imminent danger.
MPC - threat can be of deadly or serious bodily harm, or of kidnaping or rape, and must only be
immediately necessary on present occasion.

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Question 2
(see question 1)
Beth - Complicity/conspiracy as accomplice to Tom, and therefore also assault w/intent to rape.
Tom - May also be charged with attempted rape (Sally) and attempted homicide (Beth).
Sally - Although Tom never actually had intercourse with Sally it was only because she pushed
him off. Under the CL he had the requisite specific intent: 1) intent to do the act 2)intent that it
produce result.
There are six tests to determine whether his act constituted an attempt they are:
1) Last Proximate Act - may not because he didn't actually penetrate.
2)
Dangerous Proximity - would be satisfied because he was in geographical and
temporal proximity and there was apprehension felt.
Physical Proximity - The Rizzo case showed us that the victim must be there,
3)
which she was.
4) Unequivocality - reasonable that he could have done it.
5) Indispensable element - all he needed is himself to physically be there and able.
Probable desistance - passed the point of no return, which he may not have
6)
satisfied.
MPC
Under the MPC, he would have to had acted purposefully and taken a substantial step:
acted with the mens rea and done an act strongly corroborative of his intent. His groping and
words would have satisfied that. His groping and touching of her body parts could also
constitute sexual assault under the MPC. Tom may also be charged with attempted homicide or
assault with intent to kill or deadly weapon with respect to Beth when he smashed her head on
the floor.
Felony Murder
If Tom is convicted of rape, then he and Beth might also be charged with felony-murder
for Gladys' homicide, unless a strict agency rule is applied (which would only make them liable
for acts of other co-felon, that were foreseeable).
Also under the Pinkerton Doctrine, if Tom is liable for attempted rape or homicide or for
assault, Beth may also be liable, because of their conspiracy, if those acts were foreseeable and
in furtherance of the argument (which they probably weren't).

Question 3
This is a causation problem (and is partially answered in homicide question). Under the
CL Sally would be responsible if she were the actual "but for" cause and the proximate cause.
Because Gladys kills herself 2 weeks later and Jack is an intervening (unforeseeable) factor,
Sally probably is not the proximate cause.
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Under the MPC, the causation cannot be too remote. Again, Gladys' suicide was
probably too remote. also, Jack aided Gladys' suicide and under MPC would himself be guilty
which may in itself constitute him as an intervening factor.

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SPRING 1994 CRIMINAL LAW EXAM

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FORDHAM UNIVERSITY SCHOOL OF LAW

Examination in Criminal Law
May 16, 1994
Professor Denno

PLEASE NOTE:
1. This is a three-hour, four-question, two-page, closed-book, examination. No materials may
be used. Times are suggested for each question.
2. Write your identification number, class section, and my name on each bluebook.
3. Write legibly and use every other line.
4. If you think it is necessary, state assumptions or additional assumptions of fact not contained
in the questions or facts but which you think are appropriate to answer the questions more fully.
5. Take special note that for each offense mentioned, I ask that you discuss the possible
outcomes under both the common law and the Model Penal Code. As a summary of your
analysis, note how the results would be similar or different depending on whether you were
applying the common law or the Model Penal Code.
Good luck!

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Pitbull Perry, age 24, had always thought that she was tough. But such thoughts changed
in the Unpleasanton Correctional Institute, a medium security facility that housed two hundred
female inmates. Pitbull was younger, shorter, and slighter than the other inmates and, because of
this, she was often a target for bullying. A day wouldn't go by without a fellow inmate shoving
her into a wall, or slapping her back hard, or pulling at her clothes to get a better view of Pitbull's
body, the object of much leering and pinching. She was taunted and ridiculed continually.
Finally, Pitbull could no longer tolerate the situation. Using the one phone call she had
for the week, she phoned Zoro Zats, age 31, whom she had come to know briefly before her
prison stay. Describing her situation to Zoro, the two planned a rescue mission whereby Zoro
would drive a laundry truck into the Unpleasanton recreation yard, pick up Pitbull, and then flee
to the nearest fast food restaurant where the two would celebrate.
The plan worked, but with a hitch. Just as Pitbull and Zoro were entering the restaurant,
Officer Ode was leaving with two double cheese burgers. Having been alerted to the prison
escape, Ode recognized the descriptions of Pitbull and Zoro. He then immediately asked them to
freeze. Frantically, Pitbull shoved a double cheese burger into Ode's face and then fled with
Zoro up the ladder of a nearby apartment complex. Ode was behind them by the time they
reached the rooftop. Whereas Pitbull and Zoro were in great shape, however, Ode was not. His
love of double cheese burgers was evident. After leaping between two buildings in pursuit of
Pitbull and Zoro, Ode fell upon his attempt to leap to a third. He was later found dead at the
bottom of a 25-foot deep air shaft. It was unclear whether his death was caused by the fall or by
a heart attack directly preceding it.
After realizing Ode was dead, Pitbull and Zoro nestled into one another's arms on the
rooftop, resting and watching the sun go down. "Isn't this romantic, Zoro?" asked Pitbull. "It
could be," said Zoro, "if you were my true love, Thumbelina." "What?" exclaimed Pitbull. Zoro
explained that his true love, Thumbelina, whom he had planned to marry next week, had insisted
that Zoro never have sexual intercourse with anyone prior to their marriage. Otherwise,
according to Thumbelina, their first child would be born with rocks in his or her head and die
after one day.
"That sounds horrible," said Pitbull. Without another word, the two undressed to become
more comfortable to sleep. Zoro laid on his back so that he could watch the stars. Yet, before he
knew what was happening, Pitbull proceeded to perform oral sex on him. Zoro jumped up. "My
first child will die!" he screamed.

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QUESTIONS
1.
Pitbull and Zoro were both eventually picked up by the police who heard their argument.
They could possibly be prosecuted for what common law and Model Penal Code offenses?
Mention if there would be any differences between the types of offenses prosecuted under the
common law and Model Penal Code.
2.

What possible defenses could either Pitbull or Zoro have?

3.
With respect to questions 1 and 2, assume for the purposes of this question only whether
it would make any difference if Pitbull were a man and Zoro were a woman. Assume for the
purposes of this question only that Unpleasanton Correctional Institute was a medium security
facility that housed two hundred male inmates. Thumbelina is now also a man (called Thumbel)
and Pitbull engaged in vaginal intercourse with Zoro.
4.
Assume for the purposes of this question only that there was no sexual interaction
between Pitbull (a woman) and Zoro (a man). Instead, as the two were preparing for sleep, they
looked up to see a five-year-old child staring at them with a revolver in his hand and dancing
around. Both Pitbull and Zoro genuinely believed that the revolver was loaded. Just when the
child began to pull the trigger with the revolver pointed directly at them, Pitbull picked up a rock
and threw it at the child's head. Although Pitbull claimed that she merely intended to knock the
child off balance so that she could get the gun, medical doctors later announced that the child
died immediately. Furthermore, the gun, which looked real, was plastic, one of a number of
prizes that local fast food restaurant awarded to those who, in 1993, ate the most number of
double cheese burgers for their age, weight, and height category. What is Pitbull's or Zoro's
liability, if any?

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Student Answer to Spring 1994 Criminal Law Exam

(Footnotes refer to Professor Denno's comments).

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QUESTION 1
Pitbull & Zoro - Conspiracy to Escape.
At common law, Pitbull would be guilty of conspiracy to escape the moment the
agreement with Zoro was reached. She could be punished for the conspiracy and the target
offense. At Model Penal Code, the conspiracy did not become complete until one or the other
committed an overt act in furtherance and corroborative of the criminal purpose. Presumably,
Zoros acquisition of the laundry truck would suffice. At Model Penal Code, the conspiracy
would merge with the commission or attempted commission of the target offense because they
planned only one criminal act, not a series of acts.
Pitbull & Zoro - Attempted Escape.
Under the Model Penal Code a substantial step is the test to determine an attempt from
mere preparation. Pitbulls phone call to Zoro may be a sufficiently substantial step. Under the
common law there are a number of tests:
1. Physical proximity.
2. Dangerous proximity.
3. Last proximate act.
4. Indispensable element.
5. Unequivocabity (res ipsa loquitur)
6. Probable distance.
A prosecutor would prefer that #4(above) be applied, and the defendants attorney would
probably seek #6. Zoro could be found to be an accomplice of Pitbull in the attempt under the
Model Penal Code as he agreed to aid Pitbull in the attempt. Under common law, he could be
found to have actually aided Pitbull in her escape, sufficient to establish his derivative liability as
a common law accomplice. Similarly, Zoro could be prosecuted as an accomplice to the actual
escape. Pitbull could be prosecuted for escape.
Murder.
Both defendants could be charged with murder under the Felony Murder Rule. Odes
death occurred during their unlawful flight. Under the Model Penal Code this is sufficient to
presume reckless disregard for the value of human life. Under the common law, the offense of
flight has a sufficiently different felonious purpose to allow the Felony Murder Rule to be
invoked, even though it may not be an inherently dangerous felony. At common law, problems
of causation may arise. Odes pursuit of the fleeing felons was an independent act of will by
Ode, which may serve to break the chain of causation. Actual cause would be fairly easy to
establish as, BUT FOR Pitbulls and Zoros flight, Ode would not have been running around on
rooftops. Under the Model Penal Code, actual cause is all that is required.

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Rape or Sexual Assault.

Pitbull cannot be charged with Rape under the common law or the Model Penal Code,
because it is necessary that the victim be a woman. Under common law Pitbull could be
prosecuted for sodomy for performing oral sex on Zoro. Under the Model Penal Code, she could
be charged with deviate sexual intercourse or sexual assault, as the conduct was not consented
to. Pitbull could also be charged with assault for shoving the Big Mac in Odes face.
QUESTION 2
Defenses.
Pitbulls Escape.
Provocation might be tried but is unlikely to be successful in a common law jurisdiction
as the harassment (taunting and ridiculing) she received at the Correctional Institution would not
be found to be of sufficient seriousness to overcome the reason of the average person. Necessity
too would likely fail as there is no indication that Pitbull was even in fear of imminent deadly
force. Under the Model Penal Code the threat of sexual assault might be sufficient to allow a
successful defense of necessity or self defense. Certainly, Pitbull was subjected to sexual assault
while in jail.
Diminished Capacity might be a better bet in an Model Penal Code jurisdiction, as it
could be argued that continued taunting, ridiculing and sexual assault might bring about a serious
emotional disturbance in the average person. Therefore, Pitbulls capacity to substantially
appreciate the wrongfulness of her escape or conform her conduct to that expected of a lawabiding person (by not conspiring to escape, attempting to escape, or escaping) might have been
seriously impaired.
Murder.
To the Felony Murder Rule charge, the proximateness of Odes death would be a
weakness in the prosecutions case in a common law jurisdiction, and it might be said that Odes
voluntary intervening act of engaging in the pursuit broke the chain of Actual Causation. This
might exculpate under a Model Penal Code jurisdiction, too, although it seems unlikely as Ode
was under a legal duty to apprehend them (being a police officer).
Sexual Assault.
To the sex offenses, Pitbull could argue that she thought the conduct was permissive.
She had no reason to believe or suspect that Zoro shared Thumbelinas belief regarding the fate
of their first child should he have intercourse with another. Furthermore, some courts might be
receptive to the argument that a sex act per oral sex is not within Pitbulls understanding of the
[missing text} Killed by Pitbulls act of oral sex with Zoro even if it were Pitbulls conscious
objective (purpose) to bring about that result (impossibility).
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QUESTION 3
No change regarding escape et al.
Pitbull could be charged with the rape of Zoro. Under common law, as the act of
penetration occurred, one must look to the circumstances to determine if Pitbull is morally
culpable. Although knowing himself not to be Zoros true love, Pitbull may have believed Zoro
consented to the intercourse. A reasonable mistake of fact as to consent will exculpate and an
unreasonable one will not. Pitbulls mistaken belief in Zoros consent might be reasonable, as
the reason given which hinted the possibility of non-consent was so silly. A reasonable mistake,
however, will not exculpate if what Pitbull was doing was legally wrong or morally wrong.
Under either possibility, the actor assumes the risk that the conduct is unlawful.
Under the Model Penal Code, Pitbulls mistake as to Zoros consent will exculpate if it
negatived a material element of the crime, in this case intent to have non-consensual sexual
intercourse with a woman not ones wife. Intent means Purpose or Knowledge. Pitbull must
have intended that Zoro not consent, or known that she did not. The question here is, does
Zoros statement to Pitbull about Thumbels fear regarding the results of Zoros unfaithful
liaison give Pitbull knowledge of Zoros non-consent. If Pitbull was only reckless, he will not be
convicted of rape.
Anyway, the worst he could get under the Model Penal Conduct would be 2nd degree rape
as Zoro was his voluntary companion at the time and nobody was injured (except Ode, but his
remoteness, temporally and spatially, from the rape indicate that it is unlikely that his death
would serve to elevate the rape offense to one of the 1st degree).
The same defense would be applicable to charges of gross sexual imposition. The
deviate sexual intercourse charge would most likely be dropped. Attempted rape would be more
difficult to prove as, under common law, rape is a general intent offense but attempted rape is a
specific intent offense.
QUESTION 4
Pitbull & Zoro, Felony Murder.
They were still escapees in flight. However, Felony murder charges would most likely
merge with other charges brought up against Pitbull and Zoro regarding the childs death, such
as;
Pitbull:
1.) Murder.
Pitbull intentionally threw the rock at the childs head. At common law, intent to commit
grievous bodily harm is sufficient to imply Malic Aforethought and provide the requisite intent
for murder. Under the Model Penal Code, because any reasonable person KNOWS that if you
bean someone on the head with a rock it is substantially certain to kill, or at the very least,
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Pitbull was aware of the risk of killing the Child with the rock and consciously disregarded the
risk. I.E., she was Reckless and showed an indifference to the value of human life.
No causation problems would arise with the thin facts under common law or the Model
Penal Code.
2.) Manslaughter.
Manslaughter, at common law, was homicide without Malice Aforethought. If the rock
was pretty small, and Pitbull didnt think it would seriously injure the child, it might be said that
Pitbull lacked Malice Aforethought. Under the Model Penal Code, if Pitbull was reckless as to
the likelihood of killing the child with the rock, but that recklessness did not show a depraved
indifference to the value of human life, Pitbull could still be charged with Manslaughter.
Again, no problem with causation will arise.
3.) Common Law Criminal Homicide or Negligent Homicide under the Model Penal Code.
These crimes are roughly equivalent. If Pitbull was negligent as to the risk of killing the
child with the rock, she can still be charged with negligent homicide or its common law
equivalent. To be negligent she must have failed to perceive an unreasonable risk which she
should have perceived.
Zoro:
Zoro did not do the act which resulted in the childs death, so his liability must derive
from Pitbull. As a conspirator in the escape, under the common law Pinkerton doctrine, he is
liable for any criminal acts done by Pitbull in furtherance of the conspiracy. Under the Model
Penal Code, Zoros liability may be limited by the foreseeability of Pitbulls killing of the child
(arguably, none). Killing of innocent children under such circumstances as these was not within
the scope of the risk Zoro undertook. As an accomplice to the escape, Zoros liability can be
extended to include Pitbulls unless he would be legally incapable of committing the offense
charged. Under an agency theory (majority) or Proximate Cause theory (minority) he can be
charged with felony murder for the killing of the child. Basically, Zoro can be charged with
anything Pitbull can be charged with through either conspiracy principles or complicity
principles.
Defenses:
Self Defense.
Pitbull may argue self defense. The gun looked real and it was pointed at Pitbull and
Zoro, and the child was in the act of pulling the trigger. Pitbulls mistaken belief that unlawful
deadly force was about to be used on them appears to be reasonable. The threat was sufficiently
imminent and sufficiently grave to satisfy the requirements of the common and the Model Penal
Code.

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Pitbull might also claim defense of others (namely, Zoro). Again, the threat was
sufficient to justify use of force against the child. The defense may fail, however, because the
force used by Pitbull may have been more than was necessary to neutralize the threat. She could
have thrown the rock at the childs arm, for example. Her belief that she could not retreat with
complete safety for herself and Zoro would be relevant to determine the appropriateness of her
response to the threat. Pitbulls reasonable belief will exculpate only if construed as an excuse,
not as a justification. Presumably, society would have been less injured has Pitbull allowed
herself and Zoro (two felons) to die rather than killing an innocent child. It probably could be
construed as an excuse because the situation was an emergency, and cool, rational reflection is
not expected of people confronted unexpectedly with a life-threatening emergency.
Diminished Capacity.
Pitbull might try to argue that her knowledge of the wrongfulness of her conduct or her
ability to conform it to societys standards were seriously impaired by her experiences in prison
and her status as a fleeing felon. I doubt, however, that a court would find these to be reasonable
excuses for her substantial impairment.
Necessity.
Necessity would most likely fail as a defense for the same reason that the justification of
self-defense would fail. For a successful necessity defense, it must be shown that the outcome
was the lesser of two evils, and that is probably not the case here. Saving two felons does not
outweigh the killing of an innocent child.

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FALL 1994 CRIMINAL LAW EXAM

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FORDHAM UNIVERSITY SCHOOL OF LAW

Examination in Criminal Law
December 16, 1994
Professor Denno

PLEASE NOTE:
1. This is a three-hour, three-question, six-page, closed-book, examination. No materials may
be used. Times are suggested for each question.
2. Write your identification number, class section, and my name on each bluebook.
3. Write legibly and use every other line.
4. If you think it is necessary, state assumptions or additional assumptions of fact not contained
in the questions or facts but which you think are appropriate to answer the questions more fully.
5. Take special note that for each offense mentioned, I ask that you discuss the possible
outcomes under both the common law and the Model Penal Code. As a summary of your
analysis, note how the results would be similar or different depending on whether you were
applying the common law or the Model Penal Code.
Good luck!

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QUESTION ONE - 45 MINUTES

Within the past few years, legal scholars have critiqued what one scholar has called,
"abuse excuses" - "legal tactic[s] by which criminal defendants claim a history of abuse as an
excuse for violent retaliation." "Battered woman syndrome," "urban survival syndrome," "child
abuse syndrome," "premenstrual syndrome," "post traumatic stress disorder," "roid rage" (use of
anabolic steroids), and "genetic abnormality," have been included in lists of these excuses.
Discuss the viability of these excuses in light of the following questions:
(a) How and why are these excuses used?
(b) Are the criticisms warranted?
(c) Should all such excuses be regarded equivalently, or are some more or less legitimate
than others?
(d) How do these excuses compare to those defenses or excuses that scholars consider to
be more sound legally?
QUESTION TWO - ONE HOUR
Todd Twinkie, a twenty-year-old college student residing in the state of XYZ, has
participated in a series of sexual encounters with married couples in the past year. On the
evening of December 31, Todd encountered Calvin Collie. Calvin wanted Todd to join him and
his wife Lorraine in a special arrangement. According to Calvin, his wife enjoyed "kinky" sex.
He and Todd would dress in dark clothing and ski masks and pretend to break into Calvin's
house while his wife was asleep. They would then tape and bind her, and proceed to have
intercourse with her. Calvin explained that Todd would have to do all the talking because it
wouldn't be much fun for Lorraine to hear her husband. Furthermore, Calvin told Todd that the
first thing he should tell Lorraine is that someone in the house was watching her two children,
and that no one will be hurt if she does what she is told.
After discussing their plans, Calvin suggested that they should drop by Calvin's house
first and chat with Lorraine at 8:00 and then return when they knew she was asleep. When
Calvin and Todd came by at 8:00, however, they met with Lorraine only briefly. The three
chatted only long enough for Calvin to explain to Lorraine that he and Todd were friends, and
that they were going out to play cards. Lorraine barely looked at Todd, entranced instead in
watching television. Lorraine did say, however, how nice it was to meet Todd and hoped that he
would come by the house again.
Calvin and Todd returned at 11:00, when the house was dark. After donning ski masks,
they went up a ladder that Todd had mounted on the side of the house and entered a window,
breaking it. They then quietly entered Lorraine's room, waking her as they started to tie her up.
Per Calvin's instructions, Todd explained that someone else was in the house watching the
children. If she simply had intercourse with them, nothing serious would happen to her or her
kids.
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Although it was very dark, Lorraine looked terrified. The two men then proceeded to
blindfold her eyes and bind her arms and lags with tape. Both Todd and Calvin had vaginal
intercourse with Lorraine, videotaping the whole incident according to Calvin's instructions.
During the entire time, Lorraine appeared to be stiff and uncomfortable. Todd and Calvin then
left.
About one-half hour later, Calvin returned home. By this time also, Lorraine had
removed the binding on her arms and legs. Hysterical, Lorraine ran down the stairs and began
screaming that she had been raped by two men, although, fortunately, nothing had happened to
the children. Calvin looked at her saying, "Did you enjoy it? Happy New Year from me and
Todd."
Two days later, investigators charged both Todd and Calvin with the rape of a federal
officer. Todd was astonished; he claimed that he did not know that Lorraine was a federal
officer or that he had raped her. Calvin claimed that he knew that Lorraine was a federal officer,
but that Lorraine was aware that he and Todd were performing the acts and wanted them to do
so. He explained that he and Lorraine had discussed engaging in such an episode last year, and
that Lorraine had told him to "surprise" her. Besides, Calvin correctly explained that it is not a
crime to rape one's wife either in the state of XYZ or in a federal jurisdiction.
Under federal jurisdiction, the rape of a federal officer is designated as follows:
"If someone is a federal officer, it is a felony to purposely, knowingly, recklessly, or negligently
have sexual intercourse with them against their will."
The highest possible penalty for the rape of a federal officer is twice that for the rape of
anyone else.
Discuss the following questions:
(a) For what crimes, if any, can Todd and/or Calvin be held liable under either the
common law or the Model Penal Code? Assume that the common law and the Model Penal
Code are applicable precedent for federal as well as state crimes.
(b) What possible defenses can they use?
QUESTION THREE - 1 AND 1/4 HOURS
In Himilayan culture, cutting off the ear of a friend who is suffering from severe
headaches is a perfectly acceptable practice. Legend has it that person will be cured of
headaches forever, and will be your friend for life. Ears are not a important physical feature in
Himilaya.
Gilda, who just arrived in the United States two months ago, is delighted with her new
job and co-workers, particularly Gunther. When she was assigned to work with him, however,
he complained that he was under a lot of stress, and it caused him to appear angry at times.
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On December 14, when Gilda went into Gunther's office, he complained to her about a
very severe headache. Upon hearing this, Gilda went back to her desk to retrieve her ritual ear
cutting Himilayan knife. Bobbo saw Gilda with the knife and asked what she intended to do
with it. Gilda replied that she was going to cut off Gunther's ear because he had a headache.
Bobbo grabbed the knife from Gilda and insisted that she could not use it. Seeing the
scuffle, others in the office joined in picking sides. Sam defended Gilda because he thought her
explanation for cutting off Gunther's ear was "cool." Sinthia defended Bobbo because he was
her supervisor and she wanted a raise. Things got out of hand when other office members
attempted to grab the knife. In the melee, Gilda accidently killed Igor. The knife pierced his
heart when Gilda grabbed the knife from Sinthia, and, as a result of her efforts, pulled it too hard
in Igor's direction. Ralph was killed when Sinthia threw a desk at him to stop him from laughing
at Sinthia's failure to get the knife.
After all the bloodshed, Gilda told Sam that she now understood why Americans buy
aspirin. Sam replied that if she had watched the television advertisements she would know that
aspirin never works. Taking the knife, he explained that he thought Gilda's method would
probably work a lot better. Gilda encouraged him to try it out on Gunther.
Sam ran to Gunther's office and quickly cut off an ear. Yet the ear belonged to Duido,
who was talking to Gunther, and didn't resemble Gunther physically in any way. Seeing the
mistake, Gilda ran up to Sam and took the knife. Carefully aiming, Gilda also cut off an ear.
Yet the ear belonged to a cardboard cut-out of Gunther displayed in his office as part of an
advertising gimmick. Gunther was hiding under his desk.
When questioned, Sam explained that he was so intent on accomplishing Gildas goal
that he didn't notice the lack of a resemblance between Gunther and Duido. Sam claimed that an
ear is just an ear. Six weeks later Duido died as a result of medical complications arising from
his ear injury.
When questioned later, Gilda claimed that there had never been a prosecution of a
Himilayan in the United States for ear-cutting, even though the police were aware that such
procedures existed and there had been news articles in The New York Times about it.
(a) For what crimes, if any, can Gilda, Gunther, Sam, Sinthia, Duido, and Bobbo be held
liable under the common law or the Model Penal Code?
(b) What possible defenses can they use?

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Student Answer to Fall 1994 Criminal Law Exam

(Footnotes refer to Professor Denno's comments).

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Question 1
(a)
These excuses can be used as part of insanity, diminished capacity, self-defense or
duress.
Under insanity the defendant argues that the abuse has caused them to either lose touch
with what is right (cognitive) or more often they have an irresistible impulse (volitional). This is
useful for the Model Penal Code (MPC) and common law Irresistible Impulse test because they
each have a volitional element.
Under diminished capacity, the defendant argues that the abuse has caused a mental
defect, less than insanity. This defense is used in two ways. First, the defendant can argue that
the defect negates the necessary Mens Rea (MR); secondly, the defendant can argue they should
only be partially responsible.
Under self-defense and duress, there is a requirement that the defendant be threatened
with imminent (common law) or immediate (MPC) harm. A history of abuse can help to prove
that it was reasonable for the defendant to perceive this fear. Example: a battered woman may
be fearful of harm from her abuser before it is imminent.
These excuses are very retributive in nature. Retributive theory seeks to punish those
who are morally blameworthy. If abuse has had a detrimental affect on someone's mental state,
it is not fair to punish them.
(b)
In general, the abuse excuse is very rarely successful. However, the cases in which it is
successful are often highly publicized. (Examples: Menedez brothers and John Wayne Bobbit).
These cases may create a misconception among the public that anyone can get away with
anything if they were abused.
(c)
Some of these excuses are more legitimate than others. Excuses such as genetic
abnormalities or P.M.S. are medically verifiable facts. There is no scientific, only sociologically
proof for other excuses. They all have one common feature. For each excuse, there are a vast
number of people with the same problem that did not commit any act of violent crime. (See
Question 1(d) for further discussion).
Also, some of the excuses like diminished capacity from use of anabolic steroids or
illegal drugs could be less legitimate. The defendant was taking part in activities which were
illegal. As a result, she caused a mental defect and committed a crime. Excuses like P.M.S. or
genetic defect do not require the defendant to contribute. It could be argued that defects that
result from the defendant's own actions, especially illegal actions, are less legitimate.

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(d)
One of the biggest problems with these abuse excuses is they all hinge on psychological
testimony. As stated above, some excuses are based on medically verifiable phenomenon (for
example, PMS and a claim of a genetic defect). What separates individuals with the medical
condition who commit crimes from those with the medical condition who do not? Usually, it is
explained by psychological testimony.
The excuse defenses that are considered more legally sound do not usually require
psychological testimony (exception for insanity and diminished capacity). Defenses of excuse
such as duress and mistake of same law do not need a psychologist for the court to decide if the
excuse is warranted.
In the case of insanity, the tests look for very specific types of mental defects. Tests are
either or both, cognitive and volitional. Did the defendant know what she was doing was wrong?
Could the defendant prevent herself from doing the act? This defense appears to provide more
concrete boundaries then the various abuse excuses. Finally, although those excuses are rarely
successful the perception is that they represent a slippery slope. If the defendant is allowed to go
free for such an excuse, who will be convicted? This appears to be a popular fear. Many people
are afraid there is frightening trend of allowing, what appears to be morally blameworthy people,
to go free because they were abused.
Question 2
(a)
Federal Rape
Act: sexual intercourse against their will
MR : purposefully, knowingly, recklessly or negligently
AC : Federal officer
Common law(CL)
Rape is a general intent crime. When an element is silent the CL has six factors to use.
Here statutory construction is important because the Mens Rea (MR)terms come in the middle of
the statute.
Yermian held that MR should not apply to preceding elements.
Act: The MR terms apply to the act of having unconsensual sexual intercourse. The MR
that is applied to rape is a very wide range in terms of consent (strict liability to knowledge). It
appears that this statute would make it a crime to negligently have non-consensual sex.

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Attendant Circumstances (AC): There is no MR term. Generally, the conduct term does
not apply. The defendant must only be negligent or reckless, but the defendant's attorney can
argue in this case that the defendant must know he is raping a federal officer.
MPC
When the statute has silent elements courts use 2.02(3) and 2.02(4). In this case 2.02(4)
which applies a given MR to the entire statute, does not seem appropriate. 2.02(3) applies
reckless or higher, but only knowledge or higher to conduct. It is the better option because the
MR term is in the middle of the statute.
Act: The MR terms apply to the act of sex. As to the common law it is unclear if there
must be force or no consent. MPC rape is achieved by: (1) force or threat, (2) victim is
unconscious, (3) defendant intoxicated the victim, or (4) victim is less than 10.
Attendant Circumstances: The MPC 2.02(3) would apply reckless to the attendant
circumstances of a federal officer. He can argue mistake of fact. (See defenses).
While common law would normally apply negligence to the attendant circumstances of
federal officer, Todd's attorney may argue for a higher term. Also, the prosecutor may argue this
crime is strict liability for the attendant circumstances. In this case, Todd claims he did not
know Lorraine was a federal officer. Nothing in the facts suggest that he should have known.
Todd's conviction will depend on what MR is applied to the attendant circumstances and the how
the court deals with rape.
The MPC requires force. By applying the given MR, Todd would have to have been
negligent that he was using force. The facts tell us he bound her and he threatened her children.
Threat of force to another is sufficient for rape under MPC. Similar to common law, Todd can
raise a Mistake of Fact defense because Calvin told him he wanted this act. The issue of
attendant circumstances is similar to that under the common law. Here as well Todd's liability
will depend on what MR is applied to the attendant circumstances of the victim being a federal
officer.
Calvin
It is not a crime to have sex with one's wife, but Calvin could be an accomplice to
Todd's rape.
Common Law
This specific intent crime requires two parts; (i) the defendant must aid in fact in the
commission (ii) the defendant must have the minimum culpable state.
The facts tell us that Calvin aided in tying up Lorraine and encouraged Todd to rape her.
It is questionable if he had the requisite MR. He intended for Todd to have sex with his wife, but
he did not expect it to be rape. He can raise a mistake of fact defense similar to Todd's.

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MPC
Complicity is a two part test which requires: (i) the defendant must attempt to aid and (ii)
the defendant must have had the purpose for the crime. Calvin did aid Todd but did not intend
for rape to take place. For result crimes he must have the purpose for the conduct and result.
Since he did have the purpose for the result, sex, he may be liable. Similar to common law
complicity Calvin can raise a mistake of fact defense.
Rape: If Todd is acquitted of the two federal charges of rape he may still be liable for a
state charge of rape.
Common Law
As discussed above consent is generally an issue in the common law but the MR varies.
Given the facts that Lorraine was tied up and looked terrified, this would probably fulfill the MR
of no consent for most jurisdictions. The issue here will be mistake of fact. (See defenses).
Calvin
The complicity for this act is similar to that discussed above in his complicity for the
federal rape charge. Again, Calvin can claim his mistake of fact is a defense.
Burglary
This crime requires the defendant to "break and enter the dwelling of another at night
with the intent to commit a felony therein." Todd used a ladder to gain entrance into Lorraine's
house by breaking a window. Todd will have the requisite MR under both the MPC and CL for
the attendant circumstances and the mens rea, Todd was reckless that it was the dwelling of
another because he had been there. It was late and the darkness would alert Todd that it was
night. He intended to have sex with Lorraine while she was bound so this would probably
suffice for intent to commit a felony therein. However, Todd was with Calvin the home's owner.
This can hardly be considered breaking and entering. Todd and Calvin can be charged with
lesser MPC sexual offenses. 213.4 forbids unwanted sexual contact. Once again they will raise
the mistake of fact defense.17

17

Legal wrong doctrine; Morgan- MPC complicity exception.

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Question 2
(b)
Defenses:
1. Rape of Federal Officer
First, Todd's attorney will argue against a strict liability MR for the attendant
circumstances. Todd did not know that she was a federal officer and it will probably take strict
liability to convict him. Second, Todd will claim that he was told by Calvin that his wife
wanted to be forced into sex. This mistake of fact is a case-in chief defense.
Common Law
Under the common law, mistake of fact is only a defense to general intent crimes if it is
reasonable. Rape is a general intent crime, so the belief that Lorraine's consented must have
been reasonable. Lorraine appeared terrified at first and stiff and uncomfortable throughout the
act. Todd's attorney will argue that this was not sufficient to overcome what Calvin had told
him. The prosecutor will argue that it was unreasonable to assume that Lorraine was enjoying
this encounter. Todd does have another aid. In Regina v. Morgan, the circumstances were
similar and the court allowed an unreasonable mistake of fact . Even though this is an English
case and no United States court has ever ruled similarly it is still important.
MPC
Mistake of fact is a defense if it negates a necessary MR element of the crime. The
arguments will be similar to the common law argument.
Calvin
The complicity for federal rape requires the requisite intent. Calvin can claim that he
made a mistake of fact that Lorraine did not want sex with Todd. Under the common law, it can
be argued if this mistake is reasonable or unreasonable under the MPC. Lorraine had told Todd
in the past that she would enjoy such an episode, but this was a year ago.
Additional offenses:
Conspiracy
Todd and Calvin had a meeting of the minds, an agreement, and were at least reckless or
negligent that each other were people. This satisfies conspiracy for both common law and MPC.
The mistake of fact defense applies here as well because they did not think they were committing
either a crime (MPC) or unlawful act (common law).

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Question 3
Gilda- She is liable for Igor's death.
Murder
(a)Common law murder includes killing with extreme recklessness manifesting a
disregard for human life. It can be argued that by pulling a sharp knife in Igor's direction that
Gilda was extremely reckless. However, this act is probably better described as criminally
negligent which under the common law is involuntary manslaughter.
(b) MPC
Also includes reckless disregard for human life as murder. Again her acts were probably
not to that degree. Under the MPC, criminally negligent homicide is a separate offense from
manslaughter.
Gilda may also be charged with complicity for Sam.
(a)common law
The defendant must (i) aid and (ii) have the requisite intent. She appears to have wanted
Sam to cut Gunther's ear. It is questionable if she in fact aided this process. She did give Sam
the special knife so this aid is probably sufficient.
(b) MPC
Actual aiding is not necessary all that is necessary is an attempt to aid. The requisite
intent is fulfilled and by handing Sam the knife and saying "go for it" the attempt to aid is
fulfilled. Also, if Sam is charged with felony murder for Duido, Gildo could be as well.
(a)Common law
Under the common law, she might be guilty if the consequences were probable or
foreseeable.
(b)Under the MPC she probably would not be liable.
Assault
In the scuffle, Gilda could be charged with assault of Boobo or Sinthia.

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Felony Murder
(Sinthia)
Since Ralph died during the commission of a felonious assault that Gilda started she may
be charged with felony murder.
(a)Common law
The agency theory limits felony murder liability to co-felons. Also, under the dangerous
felony doctrine, assault is not dangerous. Finally, there is a strained causation between starting a
fight and a non-felony of throwing a desk.
(b)Assault is not an enumerated MPC crime, so no felony murder.
Attempted assault
Gilda ran into Gunther's office and sliced off his ear with the intent to cut it off. Since it
was only a cardboard cut-out Gilda could only be charged with attempted assault.
The Common law requires two parts for attempt (specific intent): (i) the defendant must
have the requisite MR for the crime; (ii) the defendant must take a substantial step. Gilda
appears to have had the intent to cut off Gunther's ear. Substantial step has six tests:
(1) last proximate cause
(2) physical proximity
(3) dangerous proximity
(4) res ipsa
(5) probable desistance
(6) indispensable element.
By taking a special ear cutting knife and slicing the cardboard cut-outs ear Gilda
probably fulfills all six tests.
MPC also requires the requisite MR and a substantial step for the same reasons
enumerated under common law attempt, Gilda probable is guilty of MPC attempt.
Under both CL and MPC Gilda will try to argue impossibility (see defenses). She may
be charged with the specific intent crime of assault with the intent to kill but she only intended
to cut Gunther's ear so the specific intent will be difficult to prove.
Assault (Sam)
(a)Common law
Assault is a general intent crime. Sam must intend the assault and have some MR,
probably negligence, regarding the attendant circumstance of the victim being another person.
Sam ran into the room with the knife and told Gilda he intended to cut off Gunther's ear. The
MR are probably fulfilled. However, Sam can claim mistake of fact as to whose ear he cut. He
intended to cut Gunther's ear (see defenses).
(b) MPC
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Similar to above Sam probably had the requisite MR but can argue mistake of fact.
Felony murder
Duido died from an ear infection. Sam may be guilty of felony murder.
(a)Common law
Felony murder is a strict liability offense but has several limiting doctrines. To be guilty
the defendant must:
(1) cause the death - in this instance causation is questionable. If the infection is
extremely unusual or bizarre, Sam is probably not responsible
(2) of another, Duido is another
(3) during commission of a felony: the injury occurred during the commission
(4) of a felony; the dangerous felony rule only allows felony murder that occurred during
dangerous felonies.
Under the abstract approach, assault may not be considered a dangerous felony. Under
the particular facts approach slicing someone's ear with a sharp knife may be a dangerous
felony. The strained causation and dangerous felony approach may exculpate Sam from felony
murder.
(b) MPC
Felony murder is only applicable under an enumerated list of felonies: rape, deviant
sexual intercourse, arson, robbery, burglary, kidnaping, or felony escape, not assault.
1)Assault (Boobo)
Boobo came over to Gilda and grabbed her and they fought. As a defense Boobo can
claim defense of another (see defenses).
Sinthia
By killing Ralph with a desk she will be charged with a homicide.
(a)Common law
While throwing a desk can be considered intent to cause serious bodily harm (murder),
Sinthia can claim that she was provoked and should only be charged with manslaughter. Under
common law if one kills in heat of passion due to adequate provocation they are charged with
the lesser crime of manslaughter. The provocation however must be reasonable. Ralph only
laughed at her so this probably will not suffice as reasonable provocation.

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(b) MPC- felony murder

Under the MPC if one kills either recklessly or under extreme emotional disturbance
(EED) it lowers the crime to manslaughter. Sinthia can argue her killing of Ralph was not
murder because of EED. This test has two parts:
(i) was the defendant disturbed (subjective)
(ii) did the defendant's disturbance reasonably cause the killing (objective).
While Sinthia may be able to prove she was subjectively disturbed, it is hard to show that her
disturbance due to Ralph's laughter reasonably led to killing him.
2)Assault
Sinthia joined the fight by defended her boss Boobo. Her liability depends on Boobo's
justification for fighting. Since he was trying to defend Gunther from having his ear cut off she
was probably justified.

3
(b)Defenses:
Gilda
murderGilda can argue she was mistaken as to the fact that pulling the knife would kill Igor.
This mistake probably will not negate the necessary MR, recklessness.
Felony Murder
She can argue that Sam's felony murder charges for Duido's death are too remote for her
to be liable.
(a) common law - Under the common law this may work because Duido's dying from an
ear infection was probably not a foreseeable consequence of the complicity.
(b) MPC - Since the result was so remote, Gilda probably will not be liable. Gilda
probably did not have the purpose for the crime of felony murder, which under the MPC is
extreme recklessness.
Impossibility
Gilda can argue it is impossible to assault a cardboard cut-out.
(a) common law- There are three types of impossibility:
(1) factual
(2) legal
(3) hybrid
This appears to be pure factual because if the attendant circumstances were as Gilda expected
there would be a crime. Normally, factual impossibility is no defense but since there was no
harm done the courts may be lenient.
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(b) MPC - Only legal and factual. As above, this is factual which is no defense.
Cultural defense
By being foreign Gilda can claim her culture as a defense. She stated that no one from
her country had ever been prosecuted for ear cutting. She honestly believed it could cure
Gunther's headache. Generally, cultural defense can only be useful as a mitigating factor in
sentencing.
Sam- mistake of fact
Sam can claim a mistake of fact because he thought he was cutting off Gunther's ear.
(a) Common law - Mistake of fact to a general intent crime must be reasonable. It is
arguable that this mistake was reasonable.
(b) MPC - A mistake of fact must negate a necessary MR element. Again, it is arguable
if this is achieved. Also, the intent to assault can transfer from one victim to another. MPC
states that a defendant is still guilty if the result differs from the intent only in that it was
inflicted on a different person.
Boobo - defense of another
Boobo can argue he was defending the others from Gilda. Since he used force that
another was entitled to and he was correct in his belief, the defense will probably justify his
actions under both MPC and CL.
Sinthia
She can claim that she was provoked into killing Ralph. This is discussed above. She
may claim that Ralph's laughter drove her insane, but she did not display either cognitive or
volitional impairments.
Other offenses:
Sam-assault - When Sam jumped into the fight he could be charged with assault. No
defense of another for Gilda, because she was the initial aggressor.
Gunther and Duido - May have had a duty to go help their employees subdue Gilda.
Gunther had a status relationship with his employees hiding under the desk may be a punishable
omission.

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