Criminal Law Outline

Justification of Punishment
Retributivism: Punishment is justified because people deserve it for acting immorally/pastlooking
I.
Retribution
a. Degrees of culpability based on circumstance
i. Regina v. Dudley and Stephens: murder of shipmate for food; was it less
morally wrong b/c of circumstance?
II.
Idea of proportionality of punishment
Utilitarianism: Punishment is justified because it serves a purpose/forward-looking
I.
Deterrence: Reduction of future crime
a. Specific deterrence: D decides not to commit future crimes
b. General deterrence: Other people see punishment, decide not to commit crime
i. Regina v. Dudley
II.
Incapacitation: prevention from re-offending
a. Punish every offender equally or
b. Attempt to identify potential re-offenders and incapacitate them
i. Question of fairness
ii. Sentences based on individual characteristics
c. Does not have to be in traditional form of jail
III.
Rehabilitation: offenders can be changed/treated
a. Idea that crime is psychological disturbance
b. Individuality
IV.
General Critiques of Utilitarianism:
a. Not fair to use defendants for greater purpose
Related Ideas:
I.
Justification v. Excuse
a. Justification: sometimes w/ justification it is said that no crime has been
committed
i. Self-defense
b. Excuse: crime was committed, but person is excused; circumstances of
compulsion can excuse a person
i. Insanity, mental illness
II.
Should punishment consider individual factor such as age/race?
III.
Public shaming
IV.
Extraordinary Family Circumstances
a. U.S. v. Johnson: mother w/ four young childrens sentence reduced b/c of
extraordinary family responsibilities
b. Utilitarian: looking at family situations greater good of society
c. Retribution: less culpability when there is good excuse
Criminal Conduct: Culpability

Actus reus plus mens rea

Actus Reus (objective voluntary act)
Voluntary Conduct willed by actor
Elements (MPC 1.13):
I.
Conduct: physical behavior of D
a. All crimes must have conduct element (act or omission)
b. MPC: 2.01(1): only liable for voluntary acts or omission to perform act of which
person is physically capable
i. Voluntary v. involuntary acts under MPC
1. Habit: voluntary
2. Possession: voluntary only with awareness
3. Hypnosis: involuntary
4. Sleepwalking: involuntary
c. Martin v. State: police brought drunk man to highway; court ruled act must be
voluntary to be crime
d. People v. Newton: man kills police officer when unconscious; not voluntary so
not culpable
e. People v. Decina: man kills another b/c he has epileptic seizure while driving;
aware of condition and voluntarily drove so culpable
II.
Circumstance: objective fact or condition
III.
Result: consequence/outcome of conduct
Omission
I.
MPC 2.01(3): No liability for omission unless (a) the omission is expressly made
sufficient by the law defining the offense; or (b)a duty to perform the omitted act is
otherwise imposed by law
a. Pope v. State: woman not culpable for child abuse when she watched mother beat
child to death b/c she was not responsible for supervision of child under statute,
thus no legal obligation
b. No duty for good Samaritan behavior
c. Jones v. U.S.: whether woman who failed to nourish child at her house had duty to
act
i. Duty to act when: 1) there is a statute that obligates you to care for
another; 2)if you stand in a certain relationship with the child (parent-child
relationship); 3) if there is a contractual obligation; 4) or one has
voluntarily assumed care for another and has secluded that person
d. Barber v. Superior Court: act v. omission when doctor removed patient from life
support at familys request (homicide?)
i. Omission of further treatment physician has no duty to continue
treatment once it is proven to be ineffective, so not homicide
ii. If it was an act, it would be homicide
II.
MPC 2.01(3)(b): crime if civil law imposes legal duty to act
Mens Rea

Must look at mens rea for each element of the crime D must have mens rea for
each element to be convicted.
Every statute does not always have circumstance, conduct and result. In an exam,
identify which apply, then figure out which mens rea is required for each element.
You can do this without looking at facts. Element analysis is not related to facts, but
what is written into the statute. Once you look at the statute, you go to facts and
figure out if D had the mens rea required in each element of the crime
Culpable if you had a choice in conduct
Difficult to prove state of mind, but criminal law is about subjective blameworthiness,
except in case of negligence
o Must infer

Culpable Mental State (MPC 2.02)

I.

II.

III.

Purposely: 2.02(a), intends to harm

a. Subjective test
b. MPC does away with difference between specific and general intent
c. Conduct: (i) conscious intent to engage in conduct (the act)
d. Result: (i) conscious intent to cause the result
e. Circumstance: (ii) D purpose of circumstance if the D is aware of existence of
such circumstances or he believes or hopes that they exist
f. Different from motive, which asks why?
i. Good motive is not a defense to purposeful mens rea
g. Conditional intent
1. MPC 2.02(6): condition irrelevant
Knowingly: 2.02(b), knows result is likely to occur even if he does not consciously
seek to cause the result
a. Subjective test whether D actually knew
b. Conduct: (i) aware conduct is of that nature
c. Circumstance: (i) aware circumstances exist
d. Result: (ii) practically certain conduct will cause the result
e. Risk must be substantial and unjustifiable
f. Willfully: 2.02(8), in statute often indicates knowledge as mens rea unless
statute otherwise indicates
g. Willful blindness: 2.02(7), aware of high probability of existence
i. U.S. v. Jewell: conscious avoidance of knowledge that car had drugs in it;
counts as knowledge
1. notice that this seems like a recklessness standard
Recklessness: knowledge of risk, but conscious decision to ignore it
a. 2.02(c): consciously disregards a substantial and unjustifiable risk that the
material element exists or will result from his conduct
b. Circumstance: disregard risk that circumstance exists
c. Result: disregard risk that result will follow from conduct
d. MPC: Subjective test aware of risk of harm stemming from conduct
i. Many courts make it an objective test
e. Regina v. Cunningham: D broke gas meter, gas escaped, harming neighbor

IV.

V.

VI.

f. Risks unacceptable if social good outweighs harm

g. Remember to distinguish between reckless conduct and reckless result
Negligence: not aware of risk but should have been
a. MPC: objective standard
i. 2,02(d), Failure to perceive the risk is a gross deviation from standard of
care a reasonable person would have taken
b. Conduct: should have known conduct would bring result
c. Circumstance: should have known the circumstance existed
d. Result: should have known result would occur
e. Controversy over moral culpability
f. Civil standard of negligence v. criminal standard
i. Criminal: requires gross deviation from what reasonable person would do
ii. State v. Santillanes: accidental knife injury to child question whether this
is child abuse; lower court wrongly used civil negligence standard
1. use criminal negligence standard when statute does not say
whether it requires criminal or civil standard
2. nature of risk must grossly deviate from reasonable conduct under
criminal negligence standard
Motive
a. Usually not relevant in criminal law to guilt, but can be relevant for sentencing
b. Asks Why
c. Used by prosecutor to bolster case
d. Sometimes used as defense if it is reason for action in favor of D
i. Self defense, duress, etc.
Applying Mens Rea
a. When only one mens rea is identified in statute, apply it to all elements
b. If plain words of statute do not specify mens rea, apply recklessness as standard
under the MPC 2.02(3) lower standard than Staples
i. MPC requires subjective culpability w/ reckless standard
ii. U.S. v. Staples: man did not register automatic rifle as required by statute;
adopted knowingly as standard; man not guilty if he did not know
(Supreme Court and MPC differ on standard)

Mistake of Fact
I.
Common Law
a. Distinguishes between mistake of fact and mistake of law
b. Specific intent: if the statute is one of specific intent, an unreasonable mistake
negates the mens rea
c. General intent: must be reasonable mistake to negate mens rea
II.
MPC: Mistake of Fact or Law
a. Ignorance of Law (MPC 2.02 (9))
i. Ignorance of law is never an excuse cant defend by saying you did not
know of existence of the law
b. Mistake of Law: Confusion regarding interpretation of the law

III.

IV.

i. Different from saying you werent aware there was a law, deals with
misinterpreting facts D knows actions may be governed by law but
concludes that they are not illegal
c. Mistake of Fact: Mistake over what
d. 2.04(1): ignorance or mistake as to matter of fact or law is a defense if (a) [it]
negatives the purpose, knowledge, belief, recklessness or negligence required to
establish a material element of the offense.
i. Purpose/ knowledge/recklessness: any honest mistake of fact no matter
how unreasonable is defense and negates mens rea
1. D says did not know or intend
2. Negligent (unreasonable) mistake negates
purpose/knowledge/reckless mens rea
ii. Negligence: only reasonable (not negligent) mistake negates a negligent
mens rea
iii. Remember that whichever mens rea you are at, a mistake of a lower mens
rea will negate it
e. Willfully blind treated as if you knew - 2.02(7)
Regina v. Prince: 19th Century England; man took girl away from father but believed
she was of age; reasonable mistake of fact but old court did not follow modern MPC
standard, used strict liability theory
a. Under MPC, would have defaulted to recklessness for circumstance and
reasonable mistake would be enough to negate mens rea
People v. Olson: mistake of fact about age of girl that had sex (statutory rape?), strict
liability b/c it is a statutory rape case

Strict Liability
I.
Statutes: No mens rea requirement for strict liability crimes
a. Basically liable regardless of circumstances and reasonableness
II.
MPC 2.05 essentially rejects strict liability, only allows punishment via fine based
on statute
III.
Strict liability or mens rea?
a. Generally, strict liability crimes are those which can put large portions of society
at risk ex. (Commerce of food, meds, firearms, etc.) used for protection of
consumers
i. Morisette v. U.S.: D honestly believed planes were abandoned and rotting,
took them; charged under fed. statute that makes knowing conversion of
govt. property a crime; lower court ruled on strict liability but S.C. said
this was wrong standard;
1. S.C. said you must prove mens rea for all elements of crime, here
they did not apply it for circumstance
2. Example where strict liability not applied
3. Strict liability usually applied in public welfare offenses (see
above)
b. Absent clear rule that no mens rea is required, do not dispense of mens rea based
on public welfare rationale

i. U.S. v. Staples: D unaware gun was automatic; silence by statute does not
mean strict liability; do not assume strict liability if it would criminalize
broad range of seemingly innocent conduct (talks about tradition of gun
ownership)
c. Strict liability crimes have lower penalties (fines)
i. Exceptions: statutory rape, some felony murder

Rape
Rape laws historically were about protecting womens virginity; regarded women more as
property
Currently, rape law is more about sexual relations between men and women and what the
criminal laws role is in those relationships
o More focus on rape as crime of violence
o Violating rights
o Can be against male or female

Model Penal Code

I. MPC 213
a. Expands behavior that constitutes rape
b. Provides for degrees of rape
c. Focuses on behavior rather than internal thought process
d. But, still does not use sex-neutral terms, maintains marital immunity, allows
mistake of age defense
e. Seems to offer Ds protection
II. MPC 213: Elements of rape
a. Sexual intercourse
b. by man w/woman not his wife
c. by force or
d. by threat of serious physical harm or kidnapping to victim or third person
III. MPC: also rape in case of drugs or unconscious
IV. MPC: 1st v. 2nd Degree
a. Basic is 2nd degree (213.1(1)), but if D inflicts serious bodily harm on victim or
victim was not a voluntary social companion of the actor . . . and had not
previously permitted him sexual liberties it is 1st degree rape
i. Can be problematic for date rape cases
V. Statutes: many are now gender-neutral, include more acts, shift from focus on subjective
thought process of D to objective conduct; many retain spousal immunity
Actus Reus: Look to the statutes for the elements of the crime (not MPC)
I.
Result/Conduct: Sexual Intercourse
a. Definition has been expanded in statutes and MPC
II.
Conduct: Force
a. Actual force Physical
i. State in the Interest of M.T.S.: (N.J) consensual kissing/petting, not
consensual intercourse; element of physical force met when D used no
more force than necessary for intercourse

III.

IV.

V.

ii. Men have to use force if women resist

b. Threat of force
i. Whose point of view? D or P?
ii. Often victims fear must be reasonable to count
iii. Nonphysical threat:
1. State v. Thompson: (MT) principal threatens not to let student
graduate; ruling that intimidation is not force for purposes of
rape; statute did not say anything about consent so you could not
argue that she did not give consent
2. Commonwealth v. Mlinarich: threat to return victim to juvenile
detention center; not rape b/c no physical force
Resistance
a. Not always required by statute
b. Related to whether she consented, whether force was used (men would have to
use force if woman resisted)
c. Brings up issue: how does man know what woman wants and when she is
resisting? Does no mean yes?
Circumstance: Consent
a. By having consent as an element, it shifts focus to victims behavior rather than
Ds
i. Based on victims Words and Actions
b. Non-consent?
i. Commonwealth v. Sherry: victim goes home from party w/ guys, 3 have
sex w/ her; D claims he did not know she did not consent; subjective
view of D is not defense need to look objectively
ii. Do you need to say No
iii. Do you need actual physical resistance?
c. Can be unclear
i. State v. Rusk: (Md.); D took car keys and lightly choked victim; lack of
consent was established even without specific words/actions on victims
part court ruled that proof of failure to resist b/c of fear can establish
lack of consent
d. Statutory Rape: cannot legally give consent
i. MPC allows for considering Ds belief about age
e. Unconscious/mentally incompetent people cannot give consent
Circumstance: Deception
a. General rule is that sex by deception is not rape
b. People v. Evans: D lied about conducting experiment and got victim to have sex
with him, not rape
c. Some states allow affirmative defense where D must prove he thought victim
consented

Mens Rea
I.
Circumstance: Consent
a. Can be difficult to establish Ds mens rea
b. Do you prove D knew or should have known that woman did not consent?

II.

III.

IV.

Look to statute
a. Under MPC, default is recklessness, but many states have negligence standard
(lower than recklessness) which means D would be liable if he did not know but
should have
b. Consequence of negligence standard: maybe men do not get to have as much
sex as they would like, but a higher standard might have a higher price more
victimization of women
c. Strict liability standard? Mistake of fact (consent) not a defense in MA
Cases
a. Commonwealth v. Sherry:
b. Commonwealth v. Fischer: (PA); enacts strict liability and does not allow D to
defend on basis that he made a reasonable mistake
Conduct Force:
a. Did he purposely force her?
b. Did he force her with reckless mens rea?

Homicide
Murder
Statutory approach (degrees) and MPC approach (no degrees)
Mainly looking at result element of death (circumstance is that the victim was alive
before the act)
Premeditation can be used to separate out degrees
o Appraoch #1: Premeditated murder more culpable b/c of the time of planning
o Approach #2: Some crimes are brutal that are not premeditated are they
really less culpable? MPC says no. (see Anderson)
I.

Common law:
a. Original definition: killing with malice aforethought
i. Intent to kill, motivated by ill will (malice), deliberate killing
1. also encompasses reckless or wanton conduct (2nd degree)
ii. Includes first and second degree
b. First Degree
i. Intentional killing (malice aforethought) that is premeditated, willful,
and deliberate
ii. Premeditation
1. not necessarily long premeditation necessary
2. Commonwealth v. Carrol: (1963) man murders wife after she nags
and berates him; D argues he has good reputation and could not
have premeditated the murder; court says need some premeditation
for 1st degree but no time is too short
3. State v. Guthrie: (1995) requirement of more time for
premeditation; need sufficient time between formation of intent
and actual killing; contrary to Carrol

II.

4. State v. Forrest: man helps terminally ill father die; has all mens
rea requirements but is seemingly less morally culpable, but meets
1st degree murder requirements
c. Second Degree
i. Intentional killing (malice aforethought) that is not premeditated
ii. Not premeditated, deliberate, and willful
1. Anderson case: murder reduced from 1st to 2nd degree when man
brutally stabs girlfriends daughter; so brutal there is no evidence
of premeditation, raises questions about culpability because it is
less culpable than 1st degree but obviously very brutal is D really
less culpable?
d. Provocation (related to Manslaughter)
i. Adequate provocation reduces murder to manslaughter under common
law.
ii. Generally, words are not adequate provocation to reduce from murder to
manslaughter
iii. Standard: would a reasonable person be inflamed to murder? If yes, then
it is manslaughter
iv. Cooling off: if you have time to cool off, provocation does not mitigate
charge
v. Girouard v. State: (1991) man kills wife after she questions his manliness
and abilities in bed; court says words do not constitute provocation to
reduce crime from 2nd degree murder to manslaughter
vi. Maher v. People : (1862) words were enough to be provocation where
man heard about wifes adultery
vii. People v. Casassa: there is both subjective and objective element when
deciding whether to reduce from murder to manslaughter (subjective re:
whether D was under extreme emotional disturbance; objective re:
whether disturbance was reasonable)
1. raises question about what factors to consider
MPC 210.2:
a. abolishes distinction between first and second degree murder (rejects
premeditation)
b. Uses mens rea to separate murder and manslaughter
c. Mens rea: purposely; knowingly; or recklessly under circumstances manifesting
extreme indifference to the value of human life
i. Gels with common law in that any premeditated and deliberate homicide
fits within purpose or knowing
d. Must subjectively recognize risk of death under MPC
e. Idea of malice
f. Provocation does not reduce to manslaughter as in common law
i. Not provocation, but . . .
ii. 210.3(1)(b): A killing that would otherwise be murder is manslaughter if
it is committed recklessly and under extreme emotional or mental
disturbance for which there is a reasonable explanation or excuse. The
reasonableness of such explanation or excuse shall be determined from the

viewpoint of a person in the actors situation under the circumstances as

he believes them to be.
Unintended Killings (Manslaughter)
I.
Common law:
a. Unlawful homicide without malice aforethought (no intent or knowledge action
might cause death or reckless disregard for life)
i. Difficult distinction
ii. Mens rea of reckless (wanton) conduct or negligence
b. Voluntary v. Involuntary
i. Voluntary: intentional killing mitigated by heat of passion, provocation
want to cause death but you dont have control of emotions
ii. Involuntary: unintentional killing (reckless, negligent) without malice
c. Civil v. Criminal Liability
i. Commonwealth v. Welansky: fire at nightclub; manslaughter based on
omissions and affirmative acts; reasonable person should have been aware
of risk
1. mens rea wanton or reckless conduct for manslaughter
d. Objective v. Subjective Standards of Liability
i. State v. Williams: negligent parents and child dies; ordinary negligence
enough to convict of involuntary manslaughter (usually need gross
negligence); did parents exercise reasonable care? Objective standard w/
subjective parents may not have been convicted
e. Line between Murder and Manslaughter
i. When recklessness shows wanton disregard for life, it is murder
(considered malice aforethought)
1. Jury decision, consider factors such as
a. Magnitude of risk
b. Ds awareness of risk
c. Justification of risk
ii. Commonwealth v. Malone: boy shoots friend playing Russian roulette;
second degree murder rather than manslaughter; even though there was no
intent it was gross recklessness and enough to be murder b/c it showed
disregard for human life although no intent, gross negligence showed
reckless wanton disregard
iii. U.S. v. Fleming: drunk driver swerves and kills; second degree murder did
not necessitate intent to kill; wanton and gross deviation from reasonable
conduct was enough constitutes malice aforethought
1. self-induced intoxication not a defense (MPC agrees)
II.
MPC 210.3
a. (a): Homicide is manslaughter when committed recklessly (consciously disregards
a substantial and unjustifiable risk that his conduct will cause the result)
b. Under MPC, mens rea of recklessness (210.3)
i. With these, if there is extreme disregard for life it is murder (jury
determination, see above)
ii. Self-induced intoxication is no defense

c. No provocation rule (see MPC above) (c) replaced with extreme emotional
disturbance standard for which there is reasonable explanation or excuse to
change to manslaughter
i. I think victim must be the person that harmed you for reduction of crime
in this instance, which is also the majority rule
d. Both subjective and objective: (c) determining from the viewpoint of a person in
the Ds situation (objective) in the circumstances as D believed them to be
(subjective)
i. Issue: How much do info you allow in when you are subjective?
e. No Distinction between voluntary and involuntary
Felony Murder Rule
I.
Death occurring during course of felony or fleeing the felony is murder strict
liability
a. Must be inherently dangerous felony to qualify
i. Generally, the doctrine is too broad
b. Transferred intent culpable mens rea for felony gets transferred to murder
(imputation of mens rea that does not actually exist)
c. Regina v. Serne: D set house on fire and son dies; guilty of murder b/c he
committed felony
II.
Proximate Cause Theory
a. Not just the but for cause but a proximate cause of the death
III.
In furtherance or agency theory
a. killing must be in furtherance of the crime
b. person responsible for his actions or the actions of his accomplice
IV.
Ideas behind Felony Murder Rule:
a. Deters people from engaging in felonies or engaging in risky behavior while
committing a felony
b. Causal theory: A D that engages in risky behavior should be responsible for any
result of that behavior, even if unintended
c. Foreseeability: D should know this could happen
V.
MPC : limits felony murder rule to cases of robbery, rape, arson, burglary,
kidnapping, felonious escape
a. MPC is very limiting on the rule
b. Assumes reckless disregard for human life
c. Burden of proof falls to defendant to show he is not brutal, malicious killer
VI.
Co-Felons
a. Once you accept felony murder rule, complicity theory will make co-felons
accountable
b. State v. Canola: (NJ 1977) D not guilty of murder when co-felon was killed by the
victim of their robbery
i. majority rule: only guilty if co-felon is killed as a result of Ds actions
during felony
ii. agency theory
c. Taylor v. Superior Court: (CA 1970): D was guilty when victim of robbery killed
co-felon

VII.

i. co-felons were responsible for provoking resistance; had mens rea of

conscious disregard for human life and thus malice
Can be different from complicity because in complicity you might not have the
requisite intent to be convicted, but you could be convicted under felony murder
The Significance of Resulting Harm
Causation

Prosecutor must prove cause in fact and proximate cause

Common law approach (more accepted)
o But for cause
o Proximate Cause
Is there an intervening cause?
If so, is it superseding (breaks connection and D is not liable)
Remoteness and foreseeability are factors
MPC 2.03
MPC 2.03(2)(b): Purpose/knowledge the actual result involves the same kind of injury
or harm as that designed or contemplated and is not too remote or accidental in its
occurrence to have a [just] bearing on the actors liability or on the gravity of his
offense.

Cause in Fact
I.
But for cause
II.
Substantial factor test
a. does not have to be the act that definitely caused death if it contributed heavily
b. Murder victim must be alive at time of act
Proximate Cause
I.
Is the connection between the act and the harm related enough to hold D liable?
a. Scientific, moral
b. Can be multiple proximate causes
c. Criminal law requires a more substantial connection than tort law because of basis
on moral fault and punishment
i. Commonwealth v. Root
d. Unintended Victims: doctrine of transferred intent Ds intent is transferred from
the actual to the intended victim
i. Supported by MPC 2.03(2)(a)
ii. Applies only where the intended result occurs, not in attempt crimes
e. Foreseeablity
II.
MPC: is not too remote or accidental in its occurrence to have a [just] bearing on the
actors liability or on the gravity of his offense.
a. No intervening actors in MPC
III.
Foreseeability
a. If result is foreseeable, there is crime

IV.

V.

b. Mechanical or scientific
c. People v. Acosta: helicopter crash while following police chase, debate over
foreseeability, found him to be proximate cause (events foreseeable) but not
convicted b/c of lack of malice (no mens rea)
d. People v. Arzon: two fires, fireman dies b/c of 2nd fire, D started the 1st fire, still
convicted b/c sufficiently direct cause, foreseeability
Subsequent Human Actions Intervening Cause
a. Intervening cause:
i. If it breaks causal connection it is a superseding cause which gets rid of
liability
b. People v. Campbell: D gave gun to deceased hoping he would kill himself b/c
deceased slept w/ Ds wife (both men drunk), deceased killed himself, D not
guilty of murder b/c he did not do the killing deceased action was superseding
cause
c. People v. Kevorkian: assisted suicide where women took the final steps to commit
suicide, issue is extent to which he made it possible for them to kill themselves,
court tries to distinguish between aiding and participating (no clear line)
i. Generally assisted suicide is not murder but its own offense
d. Stephenson v. State: woman abducted and abused, tries to commit suicide,
kidnapper takes home after she swallows pills, court rules that victims actions
were not superseding cause b/c victim was under Ds control
i. Court seems to be saying that it is not a superseding cause unless the
victim does something that is completely unforeseeable
ii. Superseding cause in this case not volitional
Subsequent Human Actions that Recklessly Risk the Result
a. Drag racing/Russian Roulette cases
i. Manslaughter
b. Ask about foreseeability, superseding cause
c. Bring in moral arguments
d. Commonwealth v. Root: involuntary manslaughter? Drag racing, one racer
swerved and killed self, other driver not found guilty, victims action a
superseding cause b/c he recklessly chose to swerve into a head-on collision
i. Majority rejects foreseeability but dissent says D helped create the
dangerous situation and should be guilty
e. State v. McFadden: involuntary manslaughter? Drag racing, victim killed self and
innocent people when he went into oncoming traffic, court looks more at
foreseeability and convicts D
f. Commonwealth v. Attencio: Russian roulette, D guilty of manslaughter, inherent
difference between Russian roulette and drag racing b/c purpose of Russian
roulette is for someone to die
Attempt

Mens rea:
o the mens rea required for the substantive crime

o Must also intend the act, which, if carried out, would have resulted in commission
of the crime
Common law draws later line for actus reus than MPC (makes it harder to convict but
less likely to arrest someone that would change mind)
Idea that you do not want to punish for thought
o Competes with ideas that thought/intent speaks to culpability and you want to be
able to prevent crimes

Mens Rea
I.
Common Law
a. D must have the same mens rea required for acts which, if they had been carried
out, would have resulted in the commission of the crime
b. D must intend
i. To do the act (conduct)
ii. To accomplish the result
iii. Under the same circumstances (must know the circumstance of target
offense)
II.
MPC 5.01(1)
a. Same mens rea as required for commission of the crime
b. Did D have
i. Conduct: Purpose
ii. Result: Knowledge or Purpose (this makes it easier to convict for attempt)
iii. Circumstance : whatever mens rea is required for commission of
completed crime (First, you would look at the statute)
III.
Smallwood v. State: HIV+ man rapes 3 women, attempted murder? No b/c he did not
intend that they would be killed, only recklessly disregarded the possibility (result
element)
IV.
Generally, there is no crime of attempted manslaughter b/c manslaughter has a
reckless or result and not intended
Actus Reus: Preparation v. Attempt
I.
Do not want to punish for thought when there is the chance the person will change
mind
II.
Tests: Proximity, MPC
III.
Common Law (Proximity Test): Mere preparation is not enough, must wait until last
step before crime is committed to be an attempt crime
a. Question is what is yet to be done?
b. People v. Rizzo: bank robbery plan, Ds not guilty b/c they were not far enough
along in the robbery under the proximity test
c. No abandonment
IV.
MPC Approach: 5.01(1)(c) substantial step toward commission of crime test;
increases ability to move in before crime (more followed)
a. Question is what has been done is it enough to show firm intent?
b. U.S. v. Jackson: followed MPC in attempted robbery case, said there was
substantial step

c. Abandonment: allowed under MPC as affirmative defense for people who truly
voluntarily abandon the crimes
Group Criminality: Complicity

Holding accomplice accountable for actions of another during a crime

D must intend to aid in the principal act
If accomplice has the requisite mens rea, you impute the act of the principal actor you
do not impute mens rea
(Different from felony murder, where if the D has the requisite mens rea, you impute the
mens rea for murder)
Broad doctrine
Balances holding people accountable for the risk they caused and the level of
involvement in creating the risky situation

Requirements
I.
The D aided or abetted (actus reus)
a. D must have directly or indirectly encouraged or facilitated the commission of the
offense
b. Under MPC, attempt to aid is enough, whereas under common law you actually
have to aid the person (most states follow common law here)
c. Remember, there is no but for element no need the prove the crime would not
have been committed but for the aid
II.
D Had the requisite mens rea
a. Mens rea for the crime required
i. Result: kind of culpability sufficient for the commission of the offense as
provided in the definition of the substantive crime
1. as long as you intend to aid, there is no purpose/intent for the result
(can be troublesome)
2. remember the cleaning the gun example knowledge of use of the
gun often enough to convict
ii. Had Purpose (Intent to aid) act with an affirmative desire that his acts
have an encouraging or assisting effect. This promotes or facilitates the
crime/ purpose to promote commission of crime/ assist party to engage in
conduct that forms the basis of the offense
1. once you aid, you can impute the conduct of the principal actor
III.
The person abetted or incited actually committed the offense
Mens Rea
I.
Actions of the Principal
a. Hicks v. U.S.: one man kills another, D used encouraging words; if D intended to
encourage murder, the action is imputed to him
b. State v. Gladstone: D told other person where he could buy marijuana, had no
purpose to aid the principal in selling marijuana (the crime) even though knew it
could happen, so not guilty

II.
III.

IV.

V.

i. Knowledge not enough, need purpose

c. People v. Luparello: D looking for ex-girlfriend, henchmen kill the guy who
might be able to locate her
i. They convicted him based on imputing the purpose of the henchmen but
this DOES NOT follow the MPC b/c he did not have purpose in relation to
the commission of the crime (murder)
Attendant Circumstances
Result
a. People v. McVay: convicted of aiding manslaughter based on aiding in
commission of grossly negligent act
b. People v. Russell: 3 kids shooting guns, no proof as to which killed the principal
all convicted b/c all had the necessary mens rea for murder
Drag racing and complicity
a. Accomplice has to intend to aid the principal actor in the activity; question
becomes which activity in drag racing the accomplice intends to aid the drag
racing, but not the murder/manslaughter
Dangerous activity
a. State v. Ayers: no complicity for involuntary manslaughter when selling gun to 16
year old without permit
b. State v. Travis: complicity for involuntary manslaughter when D let 15-yr. old
drive defective motorcycle in area w/ lots of kids around
c. The theory for holding an accomplice liable in dangerous activity is that they
aided the principal actor in the dangerous activity. They risked the death of
someone by aiding in the dangerous activity
d. There is also an element of closeness to the actual activity that distinguishes these
cases (idea of fairness); court seems to raise the aid requirement in instances of
recklessness and negligence

Actus Reus
I.
Wilcox v. Jeffery: convicted for aiding when man went to watch a man illegally play
instrument even though he did not encourage him
a. Most states will rule differently than here b/c there was no actual aid
II.
State v. Tally: telegram case, telegram aided the brothers in committing murder, so he
is guilty of murder as well
Conspiracy
MPC:
o A person is guilty of conspiracy if he agrees to:
Commit an offense
Attempt to commit an offense
Solicit another person to commit an offense
Aid someone in the planning or commission of the offense
Overt Act: if its a lesser offense (misdemeanor, 3rd degree felony), under the MPC there
must be an overt act and many states require overt act for any crime
Mens Rea:

o Purpose for the actus reus of agreeing, intent for crime

Purpose can be shown by monetary gains
o Set MR for ACs and result to where they need to be for policy reasons
Common Law
o At common law, a conspiracy need not be based on an express
agreement. Furthermore, an agreement can exist although not all of the parties to
it have knowledge of every detail of the arrangement, as long as each party is
aware of its essential nature. It is enough that each person agrees, at a minimum,
to commit or facilitate some of the acts leading to the substantive crime.
o In Pinkerton jurisdictions, conspiracy liability also produces liability for the
substantive offenses of any other co-conspirator when those offenses are
committed in furtherance of the conspiracy, even if the particular conspirator isnt
aware of the acts or even of the actor.
o In Bridges jurisdictions, this is taken even further, and conspiracy provides
liability for any criminal acts of co-conspirators, even when NOT in furtherance
of the conspiratorial objective, when those actions are natural and probable
consequences of the nature of the conspiracy.
Defense to Conspiracy
o Renuciation: D thwarts the success of the conspiracy with the purpose of
renuciating
Some jurisdictions allow for a substantial step, but doesnt have to be
thwarts
o Withdrawal: D tells his co-conspirators that hes out or he tells the police
everything
Under common law (Pinkerton) he is still liable for everything that
happened up to the withdrawal
o Abandonment: all co-conspirators abandon the project
Exculpation

All elements of the crime are there, but D not held accountable

Justification v. Excuse
I.
Justification: admit that D did something but say that it was a good or sensible action
morally right to commit the crime, better that D committed the crime
a. Self defense
II.
Excuse: admit action was bad but D does not accept full (or any) responsibility
a. Insanity, forced to commit crime
Self Defense
I.

MPC 3.04
a. (1): use of force upon or toward another person is justifiable when the actor
believes that such force is immediately necessary for the purpose of protecting

II.
III.
IV.

V.

himself against he use of unlawful force by such other person on the present
occasion
b. (2)(b): the use of deadly force is not justifiable under this section unless the actor
believes such force is necessary to protect himself against death, serious bodily
harm, etc.
i. allows unreasonable or reasonable mistake when deciding how much force
is necessary to defend
Common law: allows a reasonable mistake in relation to justification, but not an
unreasonable mistake
Balance: do not want an unreasonable belief to exonerate a person, but maybe you
want to mitigate culpability based on a persons belief they were in danger
People v. Goetz: systematic shooting of boys in NY subway, not guilty based on self
defense
a. Used a reasonable man standard as to whether a reasonable man would believe he
had to use deadly force in the Ds situation (rather than MPCs allowance of
mistake related to force necessary to defend)
b. This case brings up a lot if issues relating to stereotyping
Battered Women
a. State v. Kelly: D kills husband with scissors and claims self defense, history of
abuse, court ruled that expert testimony should be allowed b/c it would educate
jury about Ds state of mind
i. brings in the idea of allowing expert witnesses in order to educate the jury
b. Differentiation between woman who kills husband while fighting or when he is
not expecting it

Justification and Excuse

1) Necessity- requires balancing to det if society is better off, i.e. has net gain, b/c of
what you did
a. Can claim almost anytime evil resulting less than evil that would result;
b. Ex) Destroy one house to create fire break to save rest of city; smash window
of car to get fire extinguisher to put out fire in orphanage with 400 sleeping
orphans inside; when kill one threatener to save 100, just plain self-defense
defense
c. Retributivism, utilitarianism and expressivism prefer this complete defense to
alt methods like clemency, no sentence, prosecutorial discretion and jury
nullification
d. People v. Unger (1977)
i. Facts- walked away from prison after being threatened with sexual
assault by other inmates. He had not reported the threats to officials,
and had made no effort to notify officials at the time of his capture
(though he claimed that that was his intention).
ii. Rule- Court says below case guide to credibility of claim, not
absolutely necessary conditions for necessity defense.
iii. Lovercamp Rule-(1) faced w/ specific threat of harm, sexual attack or
death, (2) no time for complaint to authorities or history of futile

complaints, (3) no time or opportunity to resort to courts, (4) no

evidence of violence toward personnel or innocents in escape and (5)
prisoner reports self once danger gone.
e. United States v. Schoon (1992)
i. Facts- splashed fake blood and disrupted govt building, claiming
necessity defense b/c their acts of protest were necessary to avoid
further bloodshed in El Salvador.
ii. Rule-4 criterion must be met: (1) there was choice of evils and lesser
was chosen, (2) acted to prevent imminent harm, (3) reasonably
anticipated direct causal rel b/t conduct and harm to be averted, and (4)
no legal alternatives to violating law. Indirect civ disobedience will
always fail 2 and 4.
f. MPC 3.02 Choice of Evils
i. Conduct that actor believes to be necessary to avoid harm to other or
to self is justifiable,
1. So long as harm sought be avoid is actually greater than that
sought to be prevented by law defining offense charged
2. AND no code, law or legislative intent creates exceptions;
3. May not have acted recklessly or negligently to cause threat
g. Variations
i. NY Law: requires that it be an emergency (imminence limit like in
self-defense); requires no prior fault of (no defense at all); good
seeking must clearly outweigh harm that would be caused; eg) debates
on medical marijuana usually come to draw and so in NY would not
have defense
ii. Most take homicide off table; must hope not to be prosecuted
iii. MA Law: must have had no alternative to what he did (takes out all pol
protest cases)
2) Duress
a. Must come from third person
b. Not all jurisdictions recognize duress as a defense to homicide
c. Reason for duress defense is retributive, i.e. w/ third person you lack choice in
the matter; can make deterrent argument as well no deterrent for a person
w/ a gun to his head
d. Not even MPC covers threat from nature
i. If flood and just one person in car and two people in street and would
have to run over cliff to save self; no defense even under MPC;
circumstances must be created by third person
ii. In case of nature cannot transfer mens rea onto third person and punish
him; no opportunity for revenge w/ nature; punish person even though
feel they are morally blameless; raises real question about why it is we
punish
e. Rationales relate to:
i. Involuntary acts- duress like someone else acting thru , when
someone has gun to his head; psychological analog

ii. Rape- asks what kinds of threats ought someone to submit to vs. what
kinds of threats ought a person to resist; although talking about
perpetrator not victim
iii. Self-defense- what can one do to save self when harms innocent rather
than aggressor
f. MPC 2.09- broadest b/c allows as defense to homicide
i. It is affirmative defense if engaged in conduct b/c coerced to do so
by use or threat to use unlawful force against his person or another
person, which a person of reasonable firmness in his situation would
not be able to resist
1. Cannot have recklessly or negligently put self in situation
2. Not reasonable person- no reasonable wimp stnd
3. Unlike CL, no imminence requirement
ii. Powerful defense b/c can be coerced to do grtr harm
iii. State v. Toscano- NJ- where s family threatened if did not commit
fraud, ct throws out immediate and pending requirement of CL for
MPC; rationale- Believed CL standard not consistent w/ justice when
person committed small crime. Should not require heroism of people
g. Imminence and Duress: United States v. Contento-Pachon
i. Fact- Drug mule case, where claims did not abandon mission b/c
afraid for his family and corrupt govt.
ii. Rule- Jury could find that satisfied CL duress requirement that threat
be immediate and inescapable.
iii. CL Formulation- threat present, imminent, pending and inescapable;
man of ordinarily fortitude might yield; reasonable believe death or
GBH will be inflicted
h. Imminence and Duress: United States v. Fleming
i. Facts- charged w/ helping Koreans do propaganda; he claims duress
b/c had been threatened that eh would be forced to sleep in caves and
walk thru cold, probably to death.
ii. Rule- Danger of death or GBH not immediate. Resistance must have
brought you to last ditch. Ex) started walking thru snow and realized
would die soon.
Insanity (Excuse)
1) MPC: at time of criminal conduct because of mental disease/defect defendant lacks
substantial capacity either to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law
2) Common law test:
a) Must show that D didnt know what he was doing (cognitive component) or that D didnt
know what he was doing was wrong (moral component)
i) Most states use this test
ii) Note: Differs from mental illness (medical term) or incompetence (mental state
at time of legal proceeding)

Intoxication
1) Voluntary Intoxication
a. Generally not an excuse unless used for specific intent crimes
2) Involuntary Intoxication
a. Involuntary intoxication is a defense to a criminal offense in TWO circumstances:
i. Lack of mens reaActor lacked the requisite mental state of the offense.
This is the common law and MPC 2.08(1) rule. Intoxication is not a true
defense. It is a Failure of Proof defense in that an essential element of the
crime, mens rea has not been proven.
ii. Temporary InsanityDue to the involuntary intoxication, actor was
temporarily insane at the time of the offense. This is both the common
law and the MPC 2.08(4) rule.
NJ under abbott dont have to retreat unless complete safety.
Self defense
No one in the history of the us has been charged with voluntary mansluagther
First charged with murder then knock it down
Acosta responsible for foreseeable results of his actions
Knowledge common law purpose mpc for conspiracy