Saarman

Criminal Law Outline

1. Elements of Criminal Conduct
a. Common Law and MPC
i. Sources of criminal law:
1. Common Law: body of law developed by English courts at the time adopted in US
2. State and federal statutes (as interpreted by courts)
3. Model Penal Code: adopted binding; not adopted persuasive / influential
ii. Types of elements: 1.13(9): an element of an offense means such conduct or such
attendant circumstances or such a result of conduct
1. Conduct: what does or how acts
a. Enters; restrains; takes; makes
2. Circumstances: background facts, context, state of affairs static facts
a. A dwelling; belonging to another; at night; under 18; not open to public
3. Results: effects of what does
a. Causes death; causes bodily injury; brings about
4. 1.13(10): Material element. Element that does not relate exclusively to the
statute of limitations, jurisdiction, venue or to any other matter unconnected with
(i) the harm or evil, incident to conduct, sought to be prevented by the law defining
the offense or (ii) the existence of a justification or excuse for such conduct
iii. Types of crime:
1. Malum in se: crime that is bad in and of itself (morally wrong)
2. Malum prohibitum: crime that is bad because it is prohibited
iv. Defenses:
1. Negative an element of the crime (traverse)
2. Affirmative defense: justification or excuse
b. Actus Reus
i. Voluntary Act Requirement
1. Rule: Actus Reus requires commission of some voluntary act that is prohibited
by law
a. Voluntary act must be part of the definition of the crime
b. NOT: all acts part of the crime must be voluntary
c. Martin v. State, p. 205
i. arrested at home, brought to highway, public drunkenness
ii. appears in public place voluntary appearance is required
iii. Drinking is not culpable act not prohibited
d. Hypos:
i. Flip switch that detonates bomb voluntary
ii. Hallucination: squeezing orange but really a neck voluntary
iii. Committed while sleeping / unconscious involuntary
1. Even if there was willful decision
iv. Hypnosis: controversial
2. Rule: a voluntary act is a product of effort or determination, except if actor is
asleep, unconscious, under hypnosis
a. People v. Newton, p. 207
i. After stopping car and trying to arrest , gun fight. was
unconscious or semi-conscious even later at hospital
ii. Convicted of voluntary manslaughter, no unconsciousness instruc.
iii. Unconsciousness is complete defense.
1. Reasonable jury could have inferred was unconscious

Saarman

b. Unconscious: still aware, able to grab gun and shoot, shock reflexes, etc.
c. Cogdon, p. 212 (somnambulism)
i. Axed daughter while asleep to protect from Korean war
ii. Rule: acts committed while sleepwalking are involuntary
d. People v. Decina, p. 214
i. knew he was epileptic, consciously chose to drive
ii. Rule: acts committed during epileptic seizure are involuntary
iii. Rule: if knows he suffers from epilepsy, consciously chooses to
disregard potential consequences acted voluntarily
iv. Key: how broad or narrow is the time frame?
3. Rationales:
a. MPC: no deterrence if involuntary
b. Not blameworthy
c. Take away liberty freedom to mind your own business
d. Not liable for thoughts alone liable for acting on those thoughts
e. Evidentiary: harder to know mens rea without an act (objective)
4. Voluntary Act requirement is fundamental to criminal law
a. Prosecution bears burden cannot make prove otherwise
i. Unlike mens rea: some elements can be made affirmative defenses
5. Low threshold for voluntariness
ii. Liability for Omissions
1. Basic Doctrine
a. Rule: omission must be voluntary and must have legal duty to act
i. Act vs. Omission: an act is an interference with the causal process
1. If never existed, would have avoided harm act
a. Driving, dont apply breaks
2. If never existed, would have been harmed omission
a. Let baby drown in pool
ii. Jones v. US, p. 218
1. Baby died of malnutrition. Unclear s duty to child
2. Erroneous to not include requirement of legal duty
3. Sources of legal duty:
a. Statute that imposes a duty
b. Status relationships that impose duty
c. Contractual Duty
d. Voluntary Assumption (secluding victim)
e. created the risk of harm
b. MPC 2.01(3): liability for the commission of an offense may not be based
on an omission unaccompanied by action unless:
i. Statute (omission is expressly made sufficient by law)
ii. Other sources (duty to perform omitted act otherwise imposed)
iii. Pope v. State, p. 219
1. Norris and her child lived with . did nothing to protect
child / call authorities, N beat child in religious frenzy
2. accepted responsibility to house, feed and care
a. but mother always present
3. No right / duty to usurp role of mother no duty
a. Key: going out of way to find no duty
c. Rationales: against bystander duties
i. Liberty (mind your own business)
ii. Self-protection / burdensome
iii. Line drawing difficulties impacts of uncertainty

Saarman

iv. Dangers of interventions

v. Privacy of the victim
d. Jurisdictions: WI, RI, VT have criminal law duties
e. Misprision: no duty to report
i. Duties imposed on professions (doctors, teachers, etc.)
2. Status Relationships
a. People v. Beardsley, p. 228
i. No duty when married s lover took morphine
b. Commonwealth v. Cardwell, p. 231
i. Mother convicted of child abuse. Stepfather abused daughter.
ii. Rule: person with duty of care must take steps that are reasonably
calculated to achieve success
c. Why creating risk is necessary? Note 4, p. 232
i. Voluntary act created risk but this was not necessarily
accompanied by the requisite mens rea
ii. Imposing duty could account for more culpable state of mind
iii. Treats innocent and grossly negligent risk creation as the same
3. Distinguishing Omissions from Acts
a. Possession: omission or act?
i. MPC 2.01(1) possession can satisfy actus reus requirement only
when the accused was aware of his control for a sufficient period
to have been able to terminate his possession
ii. State v. Bradshaw, p. 235
1. Truck in WA from Canada, 77 lbs of marijuana.
2. Awareness is inherent in concept of possession
b. Barber v. Superior Court, p. 236
i. Victim had surgery, on life support, in a comatose state. Family
requests all life-support machines be turned off.
ii. Murder and conspiracy charges against doctors. Murder is
unlawful killing of a human being with malice aforethought
iii. Rule: withdrawal of life support is an omission
1. Like withholding manually administered medication
iv. Rule: physician has duty in immediate aftermath of a medical
event to treat. No duty to continue treatment once it has proved to
be ineffective and futile in opinion of qualified medical personnel
v. Rule: unlawful killing means not justifiable or excusable
1. Not: self-defense, solider in war, prisoner execution, etc.
vi. legislative solution for modern technology
c. Line: patients interests and desires
i. When is treatment futile?
ii. Who decides / directs termination
d. Hypo: machine that needs restarting once a week omission
i. Machine that is indefinitely self-propelling act
e. Hypo 1: Smith is dying, asked for expensive life support, live for 2 more
days. Doctor refuses Omission (but not futile). Legal duty?
f. Hypo 2: Smith is already attached to machine, another doctor wants to use
it for different patient much more like an act murder
g. Hypo 3: New patient will fully recover if attached now act maybe
necessity defense?
h. Hypo 4: another patient is rich and willing to pay more?
4. Difficulties:
a. General statutes prohibiting the causing of a particular harm

Saarman

i. Line drawing problems: doctor who wont travel, rich person who
wont give aid
b. Specific duty to act: narrowly circumscribed, alleviates line drawing
c. Mens Rea
i. Generalized Mens Rea
1. Definition: awareness or intention that must accompany the prohibited act, under
the terms of the statute defining the offense
2. Rule: mens rea for any crime is sufficient mens rea for the charge
a. general notion of blameworthiness
3. Regina v. Cunningham, p. 243
a. stole gas meter from basement, knew neighbor was home and that her
life would be put in danger
b. Maliciously: foresight of consequences not wicked / ill will
c. Malice: 1. An actual intention to do the particular kind of harm
2. Recklessness as to whether such harm should occur or not
ii. Common Law: (> 10 mens rea)
1. Rule: mens rea must relate to each element of the crime for which is charged
a. Different levels or degrees of mens rea culpability
b. Unspecified: reckless is the default or minimum
2. Regina v. Faulkner, p. 245
a. tried to steal rum from ships hold, lit match to see, fire destroyed ship
b. Had no mens rea with respect to lighting the fire
c. Rule: mens rea must be with respect to the specific crime in question
i. Intentional, willful or reckless (knew it would be probable result)
d. Purpose of criminal code is to distinguish severity of the crime by
determining degree of culpability undermined by generalized mens rea
iii. MPC Approach: act with P, K, R or N with respect to each material element of the offense
1. 2.02(2)(a): Purposely
subjective
i. Conduct / Result: conscious object to engage in conduct of that
nature or to cause such a result goal
ii. Circumstance: aware of the existence of such circumstance or
believes or hopes that they exist awareness
b. (b): Knowingly
subjective
i. Conduct / Circumstance: aware conduct is of nature /
circumstances exist certainty / aware
ii. Result: aware that result is practically certain from his conduct
practical certainty
iii. 2.02(7): high probability, unless believes it does not exist
c. (c): Recklessly
hybrid (subjective + objective)
i. Consciously disregard a substantial and unjustifiable risk of such a
nature and degree (considering nature / purpose of conduct and
circumstances known to him), its disregard is gross deviation
from standard of conduct that a law-abiding person would observe
in situation
d. (d): Negligently
objective
i. Should be aware of a substantial and unjustifiable risk of such a
nature and degree that actors failure to perceive it (considering
nature / purpose of conduct and circumstances known to him),
involves gross deviation from standard of care that a reasonable
person would observe in the situation
e. Exception: 2.05(1): violations; absolute liability specified / intended
f. P, K subjective; N objective; R hybrid

Saarman

2. 2.02(3): If not prescribed, such element is establish if a person acts purposely,

knowingly, or recklessly reckless is minimum
3. 2.02(4): If mens rea is specified applies to all material elements of the offense
a. unless contrary purpose is manifested
4. 2.02(5): P, K, R satisfy N; P, K satisfy R; P satisfies K.
5. Hypo, p. 257: rides through woods on snowmobile, kills a plant.
a. Didnt realize it was a plant:
b. He thought he was on his own land:
i. Could be reckless that land is not his own
1. Key: law protects the confident fool (N not R)
c. He thought it was a weed but worth $$:
d. DC Statute: R injured property; R not his own; (R) >$100
e. NY Statute: K damage property; K of another; R >$1500; N no
justification. Could view $1500 as strict liability
6. Ex. p. 257: CA burglary: R enters a building; with intent to commit a felony; R
inhabited dwelling CL courts may be sloppy and only apply R to first element
7. US v. Jewell, p. 260 (affirms jury instruction)
a. enters US, 110 lbs of marijuana in concealed compartment in his car.
b. Rule: knowingly is not just to act with positive knowledge but also to act
with knowledge of a high probability of the existence of that fact
c. Sloppy opinion: jury instruction didnt even require negligence
d. Dissent: Rule:
i. Awareness that there is a high probability that a fact exists
ii. Take deliberate steps to avoid knowledge [aff. step vs. no inquiry]
iii. Unless actually believes the circumstance is not present
8. Global-Tech v. SEB, p. 262
a. Knowing patent infringement
b. Willful blindness: subjectively believe high probability a fact exists
i. Take deliberate actions to avoid learning of that fact
c. Posner: p. 253, active blindness not just passive blindness (burry head)
9. Different rules:
a. Jewell: unclear/confused (upholds jury verdict on just prong 2)
b. Kennedy dissent: prongs 1, 2, 3
c. Global Tech: prongs 1, 2
d. MPC 2.02(7): prongs 1, 3
i. Excludes willful blindness:
1. Ex. throw air condition out of window
ii. Key: no culpability in cases of low probability
1. Ex. 3 suitcases, only 1 of them actually has drugs
iv. Specific Intent:
1. Those actions which must be done with a specified further purpose
a. Ex. burglary requires objective of committing felony therein)
2. Crime that requires actual knowledge / purpose of some fact or circumstance
a. Ex. bigamy, some jurisdictions may require know he is still married
v. Proving awareness and intent:
1. Circumstantial evidence
2. Mandatory presumption: jury required to draw a presumption
3. Permissive presumption: jury told of permitted factual conclusion
a. Presumed to intend the natural and probable consequences of your acts
d. Mens Rea Nuances
i. Mistake of Fact:
1. Definition: if the facts were as you believed, you would not be culpable

Saarman

a. NOT an affirmative defense but a traverse (negates element)

2. Common Law:
a. General Intent: a reasonable mistake of fact that negates mens rea
prevents liability
i. lowers mens rea to negligence
ii. Ex. unreasonable belief that substance is not poison. Even if
statute requires recklessness, no defense since belief unreasonable
b. Specific Intent: a mistake of fact that negates the specific intent prevents
liability
i. Ex. burglary: even if mistake is unreasonable, no liability
ii. Ex. assault knowing it is federal officer: even an unreasonable
mistake prevents liability
c. Regina v. Prince, p. 266
i. convicted of taking unmarried girl < 16 away from her parents
and against their will. honestly / reasonably believed she was 18
ii. Moral Wrong Theory: Bramwell (upholds conviction)
1. Rule: if the act is morally wrong, mistake of fact is no
defense
2. Taking unmarried girl from parents is morally wrong
3. Problems:
a. Assumed high degree of moral consensus
b. Deters conduct legislature has not criminalized
c. Ignores degree of culpability
iii. Lesser Crime Theory: Brett (dissent)
1. Rule: mistake of fact on reasonable grounds is an excuse
when if the facts were as believed, the acts would make
guilty of no criminal offense at all
a. No defense when conduct satisfies another crime
2. Problem: ignores degree of culpability harsh results
3. MPC 2.04(2): Mistake of fact is not available if would be guilty of another
offense had the situation been as he supposed. Instead, it reduces the grade and
degree of the offense to that which he would have been guilty.
a. Ex. Poaching deer but end up killing a person punished for poaching
b. How do you apply MPC? Charged with fake offense or sentencing?
4. Moral wrong and lesser crime (lesser evil) continue to be important in offenses
involving minors, sexual behavior and / or drugs
a. People v. Olson, p. 272
i. had sex with Shawn (13 yrs 10 mo). Convicted of lewd and
lascivious conduct with child under 14
ii. Policy to protect children, tender years
iii. Legislature makes eligible for probation if mistake regarding
age was honest and reasonable
iv. Lesser crime: crime to have sex with someone under 18
v. Harsher punishments could cut both ways
vi. Key: no real lesser crime in this instance (stat. rape is consensual)
vii. Concerned about those who feign honest mistake
b. B v. Dir. Public Prosecutions, p. 276
i. (15) repeatedly asked 13 yr old girl to perform oral sex. Trial ct.
refused his honest belief she was > 14 as a defense.
ii. Honest belief (subjective) is preferable to reasonable belief
(objective) actual culpability
1. But reasonableness relevant for jury

Saarman

iii. Rule: age related element should be treated as any other element
1. Honest mistake of fact is a defense
iv. Prosecution must show absence of genuine belief girl >14
c. Garnett v. State, p. 278
i. (IQ 52, 20) had sex with Frazier (13) who had told him she was
16. Convicted of second degree rape.
ii. No lesser crime here, rejects moral wrong theory in general
iii. Policy of protecting children, no allowance for mistake of age
defense plain language, legislative history, stat. rape SL offense
iv. Rule: no defense of age for statutory rape
v. protected by sentencing discretion
d. Statutory rape: some jurisdictions allow defense only when above age of
consent, both close in age and mistake is reasonable. Maj. = no defense
e. Reconsideration:
i. Mandatory sentencing laws unable to mitigate
ii. Lawrence v. Texas: no moral wrong given this case
f. MPC 213.6(1): When critical age is 10,
i. Child < 10: (reasonable) mistake regarding age is no defense
ii. Critical age other than 10: it is a defense for the actor to prove by a
preponderance he reasonably believed child > critical age
ii. Strict Liability
1. Definition: no mens rea required for at least one element of the offense
a. Public welfare cases
b. Slight penalties, no stigma
2. MPC 2.05(1): violations; absolute liability
a. Violation: no sentence other than fine (forfeiture) / civil penalty (<$ 500)
i. No disability or legal disadvantage based on conviction
b. Absolute liability is clearly specified by the statute
c. MPC strongly against SL
3. US v. Balint, p. 282 (SL statute)
a. s indicted for violating Narcotics Act: selling derivatives of opium and
coca (w/o form). Didnt allege s knew they sold prohibited drugs
b. Rule: no scienter requirement under a statute if the purpose of the statute
would be obstructed by such a requirement
c. Congress weighed: innocent sellers vs. protect innocent purchasers
d. Seller better able to know, difficult to prove knowledge
i. Assume the risk and no serious stigma
4. US v. Dotterweich, p. 283 (SL statute)
a. Company repackaged drugs, included mislabels from manufacturer
b. No mens rea required that knew or should have known drugs mislabeled
c. Penalties serve is means of regulation, different from traditional crimes
d. Congress balanced relative hardships protect innocent consumers
5. Morissette v. US, p. 284 (No SL)
a. entered Air Force bombing range, took spent casings, converted and sold
i. 18 USC 641: knowingly convert government property
b. Must prove had knowledge of facts that made conversion wrongful, i.e.
property had not been abandoned
c. Morissette Indicia: Public welfare offense
i. Recent crimes to protect public welfare (malum prohibitum)
ii. Low punishment / penalties
iii. Low stigma
iv. Usually able to prevent with reasonable care

Saarman

d. Traditional criminal offenses: retain requirement of intent (evil mind/hand)

e. Rule: public welfare offenses are SL if no intent element
i. Larceny type crimes require intent if not specified
ii. statute-by-statute analysis
6. Staples v. US, p. 288
a. convicted of having unregistered automatic weapon (filed down pin)
b. Tradition of gun ownership, no mens rea criminalize a lot of behavior
c. Guns are part of society do not put on notice (like grenade)
d. Rule: absent clear intent from Congress, presumption of mens rea
requirement in any statute defining a felony offense
e. Morissette indicia? (SL, no SL, no SL, SL)
7. US v. X-Citement Video, p. 291 (No SL)
a. convicted for shipping child pornography
b. Grammatically correct reading would be ridiculous
c. Rule: requires proof shipped or received something he knew to be a
visual depiction that involved a minor engaged in sexually explicit acts
8. Regina v. City of Sault Ste. Marie, p. 297
a. Compelling grounds for three categories of offenses:
i. Mens rea, consisting of some positive state of mind such as intent,
knowledge, or recklessness, must be proved by the prosecution
ii. No necessity for the prosecution to prove mens rea; doing the
prohibited act prima facie imports the offense, leaving it open to
the accused to prove he took all reasonable care
iii. Absolute liability where it is not open to the accused to exculpate
himself by showing that he was free of fault
iii. Mistake of Law
1. Knowledge of Law Is Not Required for Liability
would you do factual investigation or hire a lawyer?
2. Traditional Rule: mistake of law, even when reasonable, is no defense
a. Types:
i. Aware of law but misinterpret its meaning
ii. No awareness that law exists at all
iii. Misinterpretation or ignorance may be regarding criminal statute
in particular or some other part of the law
b. Collateral Mistake of Law: mistake of law that negates mens rea is a
defense ex. Weiss
3. Modern: Reliance on an Official Statement (corollary to MPC)
a. Very narrow, reliance must be reasonable
b. US v. Albertini, p. 319
i. Rule: no reasonable reliance on an appellate court decision with
any possibility of an appeal
4. MPC 2.04(1): Ignorance / mistake as to matter of fact or law is a defense
i. Ignorance or mistake negatives the purpose, knowledge,
recklessness or negligence required
ii. Law provides that the state of mind established by such ignorance
or mistake constitutes a defense
b. (3): Belief that conduct does not constitute offense is defense
i. Statute is unknown to and not published / available prior
ii. He acts in reasonable reliance upon an official statement of the
law, afterward determined to be invalid or erroneous, contained in
1. A statute
2. A judicial decision, opinion or judgment

Saarman

5.

6.

7.

8.

9.
10.
11.

12.

3. An administrative order or grant of permission

4. An official interpretation by the public officer or body
charged to interpret, administer or enforce
c. 2.02(9): knowledge/recklessness/negligence in knowing your conduct is
illegal is not an element unless explicit in statute
i. Casebook: if statute itself is source no defense
ii. Greenberg: such a narrow reading is not required
Distinguish:
a. Knew what I was doing, didnt know there was law against it
i. Ex. Forget youre married, get married again
b. Didnt know the nature of my conduct
i. Ex. Think NV divorce decree is valid, get married
People v. Marrero, p. 304
a. Fed. Peace Officer thought he was exempted from law under peace officer
exemption.
i. he was not unreasonable in his reading of statute
b. Rule: mistake of law is a viable exemption in those instances where an
individual relies on the validity of a law and, later, it is determined that
there was a mistake in the law itself
i. If government misleads public, no liability
ii. Ex. pollution statute exempts non-profit, exemption found invalid
c. Dissent: should allow for reasonable mistake of law, not when completely
unaware (isnt this precisely wrong?)
State v. Varszegi, p. 311
a. LL broke in, took computers and sold to satisfy debt. Thought he was
entitled under lease agreement.
b. No intent to steal / deprive another of property
c. Rule: mistake of law that negates mens rea is a defense
i. Need not be reasonable but must be honest
Regina v. Smith, p. 311
a. Tenant put in floorboards/wall panels. Removed and damaged.
b. Mistake of law: who the property belonged to
c. Honestly believed it belonged to him
d. Rule: honest belief that circumstance is not what is required by the offense
negates mens rea
People v. Weiss, p. 304, fn. b.
a. s believed officer had authorized them to seize murder suspect.
b. Mistake of law negates mens rea for without authority
Ex. reasonable mistake regarding legal definition of night in burglary
Cheek v. US, p. 313
a. Pilot failed to file income tax returns. Doesnt believe wages classify as
income, believe tax laws are unconstitutional
b. Willfulness: voluntary, intentional violation of a known legal duty
i. This is due to complexity of tax code
c. Rule: a good-faith belief one is not violating the law negates willfulness /
mens rea
i. need not be reasonable (goes to credibility for jury)
d. thinks laws are unconstitutional thinks there is no legal duty
i. complexity of tax code does not apply
Liparota v. US, p. 316
a. Statute: K uses food stamps; ?? in a way not authorized

Saarman 10

13.
14.

15.
16.

b. Statute requires knowingly. Otherwise criminalize a broad range of

apparently innocent conduct
c. Rule: must know that his conduct is not authorized
No consistent pattern for when you must be aware of a legal duty
Lambert v. CA, p. 321 (due process limitation)
a. LAMC requires registration if you are a felon in LA > 5 days
b. charged with failing to register. Didnt know of law.
c. Pure mistake of law: knew conduct but not the law
i. Nothing to put on notice, purely passive, unimportant law just
for administrative convenience
d. Due process limitations: knowledge of duty or proof of the probability of
such knowledge and subsequent failure to comply is necessary
i. Doesnt invalidate statute just application
e. Key: not clear passivity is the right principle
f. Applying MPC: guilty since code has been published
Alternate rule: mistake of law defense if a law-abiding and prudent person would
not have learned of the laws existence
a. Time consuming; could be fabricated; already wont be prosecuted
Cultural defense:
a. Individualized justice for
b. Commitment to cultural pluralism
c. Hinders expansion of legal protections for some of the most marginalized
members of society
d. Not a uniform standard for all

2. Homicide:
a. Intentional Killing
i. Kinds of liability:
1. No liability | Civil Liability | Manslaughter | Murder
ii. Approaches:
1. Actus reus: cause the death of another human being
2. Mens rea: malice aforethought
a. Doesnt require malice (assisted suicide) or forethought (no time too short)
b. Collection of mens reas
i. Intent to kill without legally sufficient provocation
ii. Seriously culpable / worst kind of mental state
3. MPC 210.1(1): A person is guilty of criminal homicide if he purposely,
knowingly, recklessly or negligently causes the death of another human being
a. (2): criminal homicide is murder, manslaughter or negligent homicide
b. 210.2: Criminal homicide constitutes murder when it is
i. Committed purposely or knowingly
ii. Committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Presumed if robbery, rape,
arson, burglary, kidnapping or felonious escape.
c. 210.6: capital punishment: aggravating and mitigating sentencing factors
i. no degrees: distinction based on sentencing factors
4. Swedish Statute:
a. Murder: 10 years to life; Less grave: 6 to 10 years discretion
b. Match culpability with punishment
c. No constraint on discretion
5. Problems:
a. Substantive: which facts will determine when punishment is more severe
b. Institutional: who assess the facts (judge or jury)

Saarman 11
6. Degrees: not CL but TL, origin in PA statute in 1794
a. 1st deg.: premeditated, poison, lying in wait, willful, deliberate, etc.
b. 2nd deg.: all other murder
c. Goal: isolate the worst murders for death penalty
d. Rationale:
i. Deterrence: premeditation easier to deter with punishment
ii. Something more culpable about premeditation (reflection, etc.)
iii. Degrees of Murder: Premeditation
1. Rule: no time is too short but it must be some amount of time
a. Courts sometimes sloppy and equate intention with premeditation
i. In effect = intention (conflates the two)
ii. Some reflection on the intention
b. Either way: little control over the jury
2. Commonwealth v. Carroll, p. 427
a. shot his wife 2 times in the back of the head. plead guilty, convicted
of 1st deg. murder in bench trial.
b. Rule: lapse of time between formation and killing is immaterial no time
is too short
i. Commonwealth v. OSearo, p. 432: requirement of premeditation
and deliberation is met whenever there is a conscious purpose to
bring about death
c. Equating premeditation and intention: 1st deg (intentional), 2nd deg.
(extremely reckless, FM)
3. State v. Guthrie, p. 432
a. stabbed co-worker in the neck (mocked him, snapped dishtowel that hit
his nose, has psychiatric disorder related to his nose). Convicted of 1 st
deg. murder, life sentence. Challenges jury instruction (first time)
b. Rule: although premeditation and deliberation are not measured by any
particular period of time, must kill purposely after contemplating the
intent to kill some appreciable time elapse
i. There must be some evidence that considered and weighed his
decision to kill in order to establish premeditation and deliberation
4. People v. Anderson, p. 435
a. Test: evidentiary standard
i. Behavior prior to the act that could indicate planning
ii. Prior relationship to victim that could indicate motive
iii. Manner of killing could indicate preconceived design
b. Standard: evidence of all 3; strong evidence of 1; evidence of 2 in
conjunction with either 1 or 3.
5. Premeditation is not a good way to distinguish severity of the murder
a. Anderson: >60 stab wounds of 10 year old girl, no evidence of planning,
motive, etc. SCOCA reversed 1st deg. conviction: no planning, motive
b. State v. Forrest: shot his terminally ill father. 1st deg. Premeditation
c. misses the moral importance of the motive
i. Goal is to distinguish heinous murders (rules vs. standards)
iv. Murder to Manslaughter: Provocation
1. Voluntary Manslaughter: intent to kill with legally adequate provocation
a. Rule:
i. Legally adequate provocation (objective)
ii. No time to cool off
iii. In the heat of passion (subjective)
b. TL: 5 categories of recognized provocation judge

Saarman 12
i.
ii.
iii.
iv.
v.

Extreme assault or battery on

Mutual combat
s illegal arrest
Injury or serious abuse of s close relative
Sudden discovery of a spouses adultery (no injury)
viewed as partial justification/excuse
c. Girouard v. State, p. 437 (conviction affirmed)
i. Married for 2 mos, both in the Army, W had resumed relationship
with old BF, verbal fight where W threatened court martial.
stabbed her 19 times, slit his own wrists. Bench trial: 2nd deg.
ii. Rule: provocation must be calculated to inflame the passion of a
reasonable man and tend to cause him to act for the moment from
passion rather than reason
1. Words alone are not enough. Must be accompanied by
conduct indicating present intention and ability to harm
iii. W didnt have size or strength to cause to fear bodily harm
iv. Recognized traditional 5 categories no need to broaden
d. Reasonableness test jury
1. Was disturbed/obscured by passion which might render
ordinary men liable to act rashly/without due deliberation
or reflection and from passion rather than judgment
2. Problem with reasonableness: reasonable person might act
rashly but not actually kill someone
e. Maher v. People, p. 439
i. saw W and H go into woods, exit hour later (friend told him
they had had sex in the wood before), went to saloon and shot H.
Evidence excluded, convicted of assault with intent to murder
ii. Rule: was disturbed/obscured by passion which might render
ordinary men liable to act rashly/without due deliberation or
reflection and from passion rather than judgment
iii. Cooling off: should go to jury to determine whether the time was
reasonable under all the circumstances of the particular case
iv. Jury should consider the evidence (indicates provocation)
v. Viewed as excuse: provocation valid regardless of whether true
vi. Dissent: justification: not valid unless facts are true
1. No reason to relax rule (less severe punishment now)
f. Justification or excuse? Practically, it does matter
i. Justification: right (victim partially at fault)
ii. Excuse: wrong, partially not blameworthy (mitigating factors)
iii. Hypo: No adultery, planning birthday party.
1. Excuse: go to jury; Justification: not for jury
iv. Hypo: trying to shoot Hunt, kills bystander
v. Key: elements of both
g. State v. Pittman, p. 445
i. 12 yr old boy spanked by grandfather, returned in 10 min shot him
ii. Rule: guardian legally entitled to paddle him no provocation
2. Adultery: s who invoke the provocation defense overwhelmingly male, victims
overwhelmingly female
a. Rule: must be legally married and must see actual sexual intercourse not
some other conduct
b. State v. Simonovich, p. 449 (no provocation)
i. W admitted to past adultery, taunted she would continue

Saarman 13
c. Dennis v. State, p. 449
i. saw W with dress raised, embrace with another. Shot the man.
ii. Rule: provocation only if he saw sexual intercourse
d. State v. Turner, p. 449 (no provocation)
i. shot her unfaithful husband/partner (not legally married)
3. Cooling off
a. Rule: a significant lapse of time between provocation and act of killing
render provocation defense inadequate as a matter of law
i. Prior suspicions provide adequate cooling off LeClair
ii. Time could serve to aggravate passions - Berry
b. US v. Bordeaux, p. 450
i. All-day drinking party, learned WB raped mother 20 yrs ago,
beat WB up, then returned and slit his throat
ii. Revelation had occurred much earlier, killed after beating
iii. No rational basis for jury to find heat of passion
c. State v. Gounagias, p. 450 (adequate cooling off period)
i. raped by victim, victim bragged about it, and taunted
persistently. Killed victim 2 weeks later
d. Commonwealth v. LeClair, p. 450 (adequate cooling off period)
i. Suspected Ws infidelity for a couple weeks, once confirmed,
strangled her. Prior suspicions provided adequate cooling off time
e. People v. Berry, p. 451 (sufficient to go to jury)
i. waited for victim for 20 hours in apartment before killing her.
ii. Jury could find smoldering passion aggravated by passing time
4. MPC Replacement and Reasonableness Requirement
a. 210.3(b): Manslaughter includes a homicide which would otherwise be
murder but is committed under the influence of extreme mental or
emotional disturbance for which there is reasonable explanation or excuse.
i. Reasonableness of excuse is determined from view of person in
actors situation under circumstances as he believes them to be
ii. Key: eliminates provocation, allows for other mitigating factors
besides just the actions of the victim
b. many more cases go to jury (goal: broaden, retain objective element)
c. Doctrine:
i. EED (subjective), reasonable excuse (objective), from viewpoint
of actor (subjective + objective)
d. People v. Casassa, p. 453
i. and victim date casually, she told him she wasnt falling in love.
He broke into apt, lay in her bed. Either commit suicide or hurt
her. Brought gifts, she refused, stabbed her, submerged in tub
ii. Rule: EED need not be spontaneous; prolonged disturbance
iii. Rule: reasonableness is determined by subjective (internal
situation) and objective (external circumstances as perceived)
e. Culture:
i. Queen v. Zhang, p. 459 (culture not relevant)
1. from China, no English, killed girlfriend when she
admitted to prostitution.
ii. Masciantonio v. R, p. 450 (no age, race, culture, etc.)
1. One law of provocation for all
f. Battered Spouse:
i. State v. McClain, p. 460 (status as battered spouse irrelevant)
1. shot man she had lived with for 9 years - abusive

Saarman 14
ii. State v. Felton, p. 461 (proper to consider battered spouse status)
g. Mental Disorder:
i. State v. Klimas, p. 461 (psychiatric evidence irrelevant /
inadmissible)
ii. People v. Steele, p. 461 (inadmissible that was traumatized
Vietnam veteran, snapped at hearing helicopter)
h. Partial Individualization:
i. DPP v. Camplin, p. 461 (distinguish characteristics)
1. killed older man sexual abuse and taunting.
2. Consider s individual characteristics that related to the
gravity of the provocation go to jury
3. Consider the self-control of a reasonable person of like
age and sex as
b. Unintentional Killing
i. Kinds of liability:
1. No liability
2. Civil Liability
3. Involuntary Manslaughter
4. Deprave Heart Murder
ii. Involuntary Manslaughter
1. Traditional Rule: no clear distinction between recklessness and crim. negligence
a. Court looks to factors to determine culpability of conduct
2. MPC 210.3: Criminal homicide constitutes manslaughter when committed
recklessly.
a. 2.02(c): Consciously disregard a substantial and unjustifiable risk of such
a nature and degree (considering nature / purpose of conduct and
circumstances known to him), its disregard is gross deviation from
standard of conduct that a law-abiding person would observe in situation
3. MPC Rule: to determine whether it was a reckless / gross deviation, consider
a. Substantial risk: probability and magnitude of harm
b. Unjustifiable risk
c. Awareness of the risk
4. Commonwealth v. Welansky, p. 464
a. owned night club, over capacity, emergency exits obscure and locked
i. Omission legal duty under ordinance. Appeals instruction.
b. Rule: criminal liability requires more than mere / civil negligence
c. Probability of injury from fire probability and magnitude relevant
d. No justification, awareness of the risk
e. no distinction between gross / criminal negligence and recklessness
5. People v. Hall, p. 469 (sufficient to go to the jury)
a. was skiing, flew of knoll and killed another skier. consciously
disregard a substantial and unjustifiable risk that death could result
b. Substantial risk (speed, out of control); unjustified (fun/enjoyment); gross
deviation (trained, expert, crim. neg. statute); awareness (infer, expert)
6. State v. Williams, p. 472 (doesnt account for education or culture)
a. Parents convicted of involuntary manslaughter. Didnt give daughter
medical attention, gangrenous tooth, feared CPS would remove child
b. WA statute: negligence standard convicted (gross neg. std. too)
c. Degree of risk: low probability but high seriousness / magnitude (death)
d. Justification: babys interest in remaining w/parents
e. Awareness: education and cultural background
f. Deterrence? Specific vs. general

Saarman 15
g. MPC commentary: dont account for education, intelligence, culture
7. Walker v. Superior Court, p. 480
a. Daughter had flu symptoms, developed stiff neck. Parents decided to treat
with prayer and not medicine and she died.
b. Many state: treatment with prayer defense to child neglect
i. Not if condition is life-threatening
c. Did parents truly believe prayer would work?
d. Parents cant impose religious beliefs on child (not old enough to make its
own decisions)
iii. Manslaughter Versus Murder: Depraved Heart Murder
1. CL: mens rea: abandoned and malignant heart
2. TL: Consider (same factors)
a. Magnitude of risk: probability and magnitude of harm
b. Unjustifiability of risk
c. Awareness of the risk
d. Balancing the factors: degree of deviation from reasonableness
3. MPC 210.2: Criminal homicide constitutes murder when it is
a. Committed recklessly under circumstances manifesting extreme
indifference to the value of human life. Presumed if robbery, rape, arson,
burglary, kidnapping or felonious escape.
b. Recklessness Plus
i. Substantial risk: probability and magnitude of harm
ii. Unjustifiable risk
iii. Aware of the risk
iv. Circumstances manifesting extreme indifference
1. Souter: objectively measures deviation
c. Ex. Russian Roulette, firing into a crowd, etc.
4. Commonwealth v. Malone, p. 482
a. 17 yr old and 13 yr old get gun and bullet, play Russian Poker
b. Rule: when commits an act of gross recklessness for which he must
reasonably anticipate that death to another is likely to result, he exhibits
malice aforethought
c. Overall judgment about conduct: no social benefit / justification
d. Probability? 60% if viewed from 3 pulls, 33.3% on 3rd pull
5. People v. Delinger, p. 484
a. Rule: malice aforethought is implied when the killing results as the natural
consequences of an intentional act committed by who knows conduct
endangers the life of another and acts with conscious disregard for that life
6. US v. Fleming, p. 486
a. driving intoxicated, reckless driving, car accident killed another driver.
b. Convicted of 2nd deg. murder
c. Awareness? Difference between malice and gross neg. is deg. not kind
d. s conduct indicates disregard for human life no awareness required
e. Practical effect? Not much (juries infer, special rule for impairment)
i. MPC 2.08(2): unawareness is immaterial for recklessness if
wasnt aware because of self-induced intoxication
1. still argue unaware even if not intoxicated
7. People v. Watson, p. 488 (aware of risk because drove to bar, knew he would
have to drive again)
iv. Felony Murder
1. Basic FM Doctrine

Saarman 16
a. Rule: killing that is the result of an attempt to commit a felony or in the
commission of a felony constitutes murder
i. TL: requires conduct be but-for cause and proximate cause
ii. Early American Rule: felon is strictly liable for killings that
result from commission of a felony, regardless of whether knew
or should have known their conduct was endangering life
b. MPC 210.2(1)(b): recklessness manifesting extreme indifference is
presumed for killings in commission of a felony
i. allows jury to find extreme recklessness
ii. Under MPC, not a separate doctrine
c. Practical considerations:
i. Easier for prosecution; not much difference in many cases
1. Intentional, depraved heart, etc.
ii. Many jurisdictions raise to 1st deg. for FM
iii. Often FM is in caselaw but explicit in grading for murder
iv. Which killings are actually relevant?
1. Not intentional or provably extremely reckless low #
d. Rationales:
i. Deterrence
1. Felonies generally raise punishment for all not few?
2. Deter violence during commission of a felony
ii. If felony is inherently dangerous, no need for prosecutor to prove
extreme recklessness for DH murder
iii. Retribution
1. Fundamental unfairness (liability proportionate to
culpability <> responsible for consequences)
2. Anamolous results: carefully constructed murder doctrine
based on mens rea and then FM negates all that
3. Old idea of generalized mens rea or criminal mental state
4. Changed circumstances:
a. CL: few felonies, all punished by death
b. Now: many felonies, range of sentencing
e. People v. Stamp, p. 493 (FM upheld)
i. Burglar, made victim lie on floor for 10 min, heart attack
ii. Rule: homicide must be the direct causal result of the felony
whether or not death was natural / probable consequence of felony
1. not limited to foreseeable deaths / proximate cause
f. King v. Commonwealth, p. 494 (reversed, no FM)
i. and co-pilot transporting 500 lbs marijuana, plane crashed.
convicted of FM for co-pilots death
ii. Rule: death must be a foreseeable result of the felony
iii. Death not made more likely by felony (flying low to avoid det.)
g. Hypo: robbing Tims house. Heart attack from coming home vs. parking
h. Regina v. Sern, p. 490 (no FM limiting FM rule)
i. took out insurance on son and property, house was lit, son died
ii. Rule: any act known to be dangerous to life and likely in itself to
cause death, done for the purpose of committing a felony which
causes death, is murder
1. If subjective: no need for FM (depraved heart)
2. If objective: gross neg. standard (inherently dangerous)
i. People v. Aaron, p. 501 (MI outlawed FM rule, only in caselaw)

Saarman 17
j.

People v. Dillon, p. 501 (CA refused to do the same, reenactments by

legislature demonstrated intent to codify FM rule)
k. Misdemeanor-Manslaughter rule (unlawful-act doctrine)
i. Rule: a misdemeanor resulting in death can provide a basis for an
involuntary manslaughter conviction without proof of recklessness
or negligence
1. Requires proximate cause. Commonwealth v. Williams,
(failure to renew license, no causal connection to accident)
2. Inherently Dangerous and Merger Limitations
a. Rule: FM only applies to felonies that are inherently dangerous to life
i. Abstract: categories of felonies that classify as inherently
dangerous (burglary, etc.)
ii. As Applied: inherent dangerousness depends on the facts of the
case not on the category of the felony
1. Question for jury or court
b. People v. Phillips, p. 502 (abstract, not inherently dangerous)
i. convinced parents of child with eye cancer he could cure her for
$700 without surgery. Convicted of 2nd deg. murder
ii. Rule: FM rule only applies to felonies inherently dangerous to life
iii. Grand theft fraud is not inherently dangerous, based on
classification not actual commission abstract approach
iv. State argues: harmless error to instruct on FM (jury must have
found didnt believe his treatment would work, this exhibits
extreme recklessness for DH murder) BUT could have believed
she would die anyway
c. People v. Henderson, p. 504 (abstract, not inherently dangerous)
i. Reversed 2nd deg. murder conviction on false imprisonment
ii. False imprisonment not inherently dangerous (specifies violence,
menace, fraud or deceit not all dangerous / violent)
d. People v. Howard, p. 504 (abstract, not inherently dangerous)
i. Convicted of FM for fleeing from officer while driving in willful
or wanton disregard for safety of persons or others (satisfied by 3
or more violations of traffic code)
ii. Not inherently dangerous (suspended license, expired registration)
iii. goes out of way to limit FM rule
e. People v. Stewart, p. 507 (as applied, question for jury)
i. Mother on crack binge, neglects feeding child
ii. Rule: inherent dangerousness is question for the jury
f. Hines v. State, p. 505 (as applied, question for court, FM)
i. Out hunting, mistook friend for a turkey, is felon with firearm
ii. Rule: a felony is inherently dangerous when it is dangerous per se
or by its circumstances creates a foreseeable risk of death
iii. Out hunting, knew other were around, took unsafe shot at dusk
g. Merger Limitations:
i. Rule: FM only applies to felonies external to homicide
ii. Assault and assault with a deadly weapon cannot form basis of FM
conviction obliterate murder manslaughter distinction
3. Restrictions: In Furtherance Requirement, Agency and Proximate Cause
a. CL Rule: FM only applies when killing is done in furtherance of felony
i. Agency Theory: FM applies only to killings committed by cofelon or agent of

Saarman 18

b.

c.

d.

e.

1. Exception: shield cases where felon uses another as a

shield FM regardless of who the shield is
ii. Proximate Cause Theory: FM applies to all killings that are
proximately caused by the unlawful activity
After commission of felony:
i. People v. Gillis, p. 516 (FM, even after attempted commission)
1. attempted to burglarize home, while driving away,
police tried to pull over and fled, accident killed 2
2. Fleeing from burglary FM
Unrelated to felony
i. People v. Cabaltero, p. 517 (FM)
1. Lookout during robbery panicked, leader shot him. Other
felons convicted of FM
2. Shooting helped ensure success of ongoing robbery
Persons resisting felony
i. State v. Canola, p. 517 (agency theory)
1. Felons (A, B, C), store owner (O). O and A die. B and C
convicted of FM
2. Agency theory: B and C only liable for Os death not As
3. Proximate Cause Theory: B and C liable for both deaths
4. Statute could support both, limit FM agency theory
5. Concurrence: proximate cause theory
a. Exception: death of co-felon justifiable homicide
b. Key: convince friend to run outside with water
gun after telling police justifiable homicide can
be basis for murder conviction
ii. Taylor (endorse agency view, co-felons could not be convicted for
felons death by store owner but enough for jury on DHM theory)
Considerations:
i. Accomplice in the car can be vicariously liable
ii. Grading provision in statute can apply to DHM conviction
regardless of FM application
iii. Difficult to distinguish clear shield cases under agency theory vs.
other cases where co-felon is killed by store owner

3. Attempts
a. Background:
i. Inchoate crime not fully realized
ii. Historically: no punishment for attempts (focused on actus reus not mens rea)
1. Attempts first added as misdemeanors
iii. Less punishment: CA (half the punishment), NY (one classification lower)
1. Rationales: less culpable, less dangerous, incentive to desist, less public outrage,
ordinary sense of responsibility
a. No punishment for failing makes committing crime more attractive
iv. Rule:
1. Specific intent to commit the underlying crime
2. Mens rea of the underlying crime
3. Actus reus
v. Strange results: Gap in the Law
1. Hypo: blindfolded person shoots into classroom
a. If someone dies DHM; no one dies not attempted murder
2. Thacker v. Commonwealth, p. 615 (no attempt)
a. shot into a tent with a light. No specific intent to kill.

Saarman 19
3. Higher mens rea for a crime that is punished less severely
4. Jurisdictions have rejected attempted felony murder
b. Mens Rea
i. Rule: specific intent (purpose) to commit the underlying crime
ii. Smallwood v. State, p. 611
1. raped 4 women, is HIV+ and knew he would infect other if unprotected
2. Magnitude of the risk: death by AIDS not probable consequence of s actions
a. (point gun and pull trigger infer purpose, natural/probable result)
3. Rule: purpose to commit the underlying crime
a. how can you prove purpose if risk of death is low?
iii. Rule: parity (same mens rea as the underlying crime)
1. CO only jurisdiction with this rule, see People v. Thomas, p. 614
2. Converts any reckless behavior into attempted involuntary manslaughter
iv. MPC 5.01:
1. Conduct: purpose
2. Result:
a. Complete attempt: purpose or belief
b. Incomplete attempt: unclear (could be purpose)
3. Circumstances: parity (same as the offense
c. Actus Reus
i. TL Rule: proximity or equivocality test for conduct
1. Proximity: acts must be proximate and near to the consummation
a. Hard to apply; ignores elaborate planning; challenging for police
2. Equivocality: acts must unequivocally show criminal intent
a. If strict, not much of a test; pragmatic (evidentiary corroboration)
ii. Considerations:
1. Make police able to intervene before crime is actually committed
2. Provide an opportunity to change his mind / repent
3. Evidentiary concerns for finding criminal liability
iii. MPC 5.01(5): abandonment/renunciation is an affirmative defense (complete + voluntary)
1. Not voluntary if motivated in party by circumstances not present at inception
(more difficult to commit) or simply postponing until later
iv. MPC / TL: accomplice liability for attempt even if underlying crime is not attempted
1. MPC: guilty of attempt
2. TL: no attempt committed so no crime
v. McQuirter v. State, p. 622 (proximity test, attempted rape)
1. found guilty of attempted rape, sheriffs testimony is only evidence
a. confession to police officer is sufficient to go to a jury
2. Problems:
a. Benign conduct can be the basis of proximity test
b. Hard to distinguish actual intention / purpose
c. Convicted on testimony of other people
vi. People v. Rizzo, p. 618 (proximity, no attempted robbery)
1. s knew Charles would take $1200 for payroll from a bank. Drove around looking
for Charles but never found him
2. Rule: the acts must be proximate and near to the consummation
a. dangerous proximity to success
3. Had not found Charles yet, could have changed their minds
vii. The King v. Barker, p. 625 (equivocality)
1. Man buys matches to light haystack, guilty only once he lights one but blows it out
because someone is watching.

Saarman 20
2. Rule: overt acts which are sufficient in themselves to declare and proclaim the
guilty purpose with which they are done
a. video without sound (life impossible for police)
viii. Anti-Stalking Statutes:
1. Designed to address the line drawing problem in attempt law. Narrowly crafted to
deal with harassment
ix. MPC 5.01(2): conduct must be a substantial step that is strongly corroborative of
criminal purpose
1. Enumerates types of conduct that are legally sufficient for jury (p. 1220)
2. confession is not relevant under this formulation (objective)
3. Small step that is strongly corroborative is insufficient
4. Incorporates elements of proximity and equivocality (less strict equivocality)
x. US v. Jackson, p. 631 (attempted robbery)
1. s gathered supplies and two attempted to rob a bank
2. Substantial step: two reconnoitered, had paraphernalia
3. Strongly corroborative: could serve no other lawful purpose
xi. US v. Harper, p. 634 (no attempted robbery)
1. s parked by bank, in bushes by car had guns, gloves, ammunition (ATM bill trap)
2. Act was equivocal, robbery still in the future
3. Key difference between causing a bill trap and approaching victims with guns
xii. US v. Joyce, p. 635
1. flew to purchase cocaine from operative, refused to pay without seeing drugs
2. Refusing to show the money and make the purchase not a substantial step
3. Not an abandonment case
d. Impossible Attempts
i. TL rule: (not like legal vs. factual mistake!)
1. Legal impossibility is a good defense
a. Circumstance element is not satisfied
2. Factual impossibility is no defense
a. Result or conduct element is not satisfied
ii. MPC 5.01(1)(a): purposely engages in conduct which would constitute the crime if the
attendant circumstances were as he believes them to be
1. eliminates impossibility defense (factual or legal) (about 2/3 states followed)
iii. True legal impossibility: there is no statute under which to be convicted
1. ex. ketchup in guacamole no crime for conviction
iv. Problem: two uses of intent in common English (Oedipus ex.: intent to marry mother)
v. People v. Jaffe, p. 641
1. bought cloth he believed to be stolen but in fact had been recovered. Charged
with receiving stolen goods.
2. Rule: not guilty of an attempt with the immediate act in contemplation of would
not have been a crime (legal impossibility)
a. manipulable (pick pocket wants whatever is in this specific pocket)
3. Knowledge is required by statute (but he has belief! red herring)
vi. People v. Dlugash, p. 643
1. shot G after B had already shot G. convicted of murder.
2. Rule: legal or factual impossibility is not a defense if the crime would have been
committed had the attendant circumstances been as believed them to be
a. Even if G was already dead, if thought he was alive when he shot him
guilty of attempted murder
vii. US v. Berrigan, p. 647
1. B smuggled letters in and out of prison but warden knew of activity
2. Factual: extraneous circ. unknown to the actor prevent consummation of crime

Saarman 21
3. Legal: intended acts, even if completed, could not amount to a crime
a. Defines intent as what results from conduct (not motive, desire, etc.)
4. Rules:
a. motive, desire and expectation is to perform an act in violation of the law
b. there is intention to perform a physical act
c. there is a performance of the intended physical act
d. consequences resulting from the intended act do not amount to a crime
5. manipulable
viii. Hypo: Lady Eldons attempt to smuggle French lace
ix. MPC 5.05(2): Inherently unlikely attempts
1. if the attempt is so inherently unlikely to result or culminate in the commission of a
crime that neither such conduct nor the actor presents a public danger, court may
lower grade or degree or dismiss entirely
2. Ex. Ivy brothers convicted of attempted murder since they used voodoo to try to
kill a judge.
x. US v. Oviedo, p. 648
1. arrested for selling heroin which in fact was procaine hydrochloride
2. Convicting would eliminate objective element with major evidentiary
significance increase convictions on mistaken inference that believed goods
to be narcotics / conduct to be illegal
3. Rule: for a criminal attempt, objective acts performed without any reliance on the
accompanying mens rea, must mark s conduct as criminal
a. Key: analog to MPCs strongly corroborative requirement
4. Complicity cant be guilty of complicity
a. Common Law:
i. Principal in first degree; principal in second degree; accessory before the fact
1. all mean complicity
a. accessory after the fact (minor punishment)
ii. Complicity is not its own crime but a way to be found guilty of committing another crime
1. Impute conduct of another person (what other examples of this are there?)
b. Mens Rea
i. Principals Conduct:
1. Rule: purpose to aid or encourage
2. MPC 5.02(1): purpose of promotion or facilitating commission or attempted
commission of a crime, encourages or requests another person
3. Specific intent to further the criminal action of the principal
4. Hicks v. US, p. 661 (purpose or knowledge to aid and abet)
a. Take off your hat and die like a man then rides off with Rowe
b. Jury instruction: if words have effect, intent presumed
c. Rule: if an accomplice is present for the purpose of aiding and abetting but
refrains because it is not necessary, is equally guilty
i. Prior encouragement suffices for the actus reus
5. Hypos, p. 663:
a. Goes along to enjoy the spectacle
no actus reus or mens rea
b. Shouts words of encouragement
no mens rea? unclear
c. Resolves to help Rowe succeed if necessary no actus reus
d. Tells Rowe he will help if needed
actus reus and mens rea
6. State v. Gladstone, p. 664
a. Sting operation, tries to buy marijuana from G, G refers to T, draws map
b. Rule: there must be a nexus between the evidence and purpose to aid and
abet commission of the crime
c. Evidence isnt corroborative of Gs purpose to further Ts sale

Saarman 22
i. does corroborate sting operation to buy though??
7. Gap in the law: severe cases where knows he is aiding or encouraging
a. Ex. Osama bin Ladens driver
b. MPC proposal: knowledge sufficient if substantially facilitates crime
c. 7th Cir. caselaw: US v. Fountain
i. knowledge is sufficient for major crimes
d. NY: substantive crime of criminal facilitation (misdemeanor or felony)
e. Specific facilitation crimes:
i. Money laundering
ii. Material support of terrorism (knowledge, material contribution)
ii. Results
1. Majority rule: parity mens rea of the underlying offense for results
2. Minority rule: purpose for results
3. State v. McVay, p. 674 (go to jury)
a. is boss of steam ship, boiler exploded killing passengers. directed
captain and engineer (certified question of law)
b. Rule: purpose with respect to conduct (aid and abet), mens rea of the
underlying offense with respect to results
c. Jury could find his conduct was reckless with respect to the results
4. Commonwealth v. Roebuck, p. 675
a. DHM conviction. Victim lured to apt complex, ambushed and shot.
participated in orchestrating the events (no way to aid unintentional act)
5. MPC 2.06(3): A person is an accomplice of another in commission of an offense
a. With purpose of promoting or facilitating its commission
i. Solicits such other person to commit it
ii. Aid or agrees or attempts to aid in planning or committing
iii. With legal duty to prevent commission, fails to make proper effort
b. (4): When causing a particular result is an element of an offense, an
accomplice in the conduct causing such result is an accomplice in the
commission of that offense, if he acts with the kind of culpability with
respect to that result that is sufficient for the commission of the offense
i. tries to endorse McVay rule
6. People v. Russell, p. 680 (complicity for DHM)
a. 3 s battle in shootout on the central mall of housing project (planned).
School principal was shot while looking for a child
b. All had purpose to engage in reckless conduct, inherently dangerous and
unlawful activity
c. Intentionally aided and encouraged each other to create crossfire
7. Hypo: W and J are roommates, after drinking J asked for Ws keys, kills pedestrian
a. Did W have purpose that J engage in the conduct?
iii. Attendant Circumstances not enough caselaw
1. CL: for strict liability offenses, awareness / knowledge is required
a. Options: parity or purpose
2. MPC: mens rea for circumstances left to interpretation
3. Hypos: accomplice in driving with expired registration? Pharmacist an accomplice
by handing out contaminated drug?
iv. Exception: Natural and Probable Consequences
1. Rule: liable as accomplice for any reasonably foreseeable offense committed by
the person aided or abetted
a. negligence standard for the underlying offense
2. People v. Luparello, p. 682 (accomplice, natural and probable consequence)

Saarman 23
a. asked friend to find out where his ex was (at any cost) by talking to
friend of her new partner. s friends killed him.
b. did not have purpose or knowledge with respect to killing
c. Rule: is guilty not only of the offense he intended to facilitate or
encourage but also of any reasonably foreseeable offense committed by the
person he aid or abets
i. Crime need not be convicted but that satisfied elements
3. Roy v. US, p. 684 (not accomplice, not natural and probable consequence)
a. Informant tried to buy handgun from , set him up with seller who
ended up robbing informant. charged as accomplice to armed robbery
b. Two competing policies:
i. Not hold responsible for things not intended
ii. Hold responsible for natural and probable consequences of a crime
even if they go beyond what was put in motion
c. Robbery was not natural and probable consequences
4. MPC 2.06: rejects natural and probable consequence by having no exception to
mens rea requirement
v. Compared to FM: broader (more applicable than FM) but less deep (lower punishment)
1. FM: inherently dangerous, merger, in furtherance, proximate cause
2. Complicity: natural and probable consequence
c. Actus Reus: Aiding, Encouraging
i. CL rule: actually aid or agree to aid in planning or in the commission
ii. MPC 2.06(3): A person is an accomplice of another in commission of an offense
1. With purpose of promoting or facilitating its commission
a. Solicits such other person to commit it
b. Aid or agrees or attempts to aid in planning or committing
c. With legal duty to prevent commission, fails to make proper effort
2. applies to attempts
iii. Wilcox v. Jeffrey, p. 687 (accomplice)
1. H (US citizen) a musician performed music in UK. charged with aiding and
abetting immigration offense by going, clapping, writing article
2. Rule: where presence is accidental it is not evidence, where it is not accidental it is
evidence for the jury
3. doesnt need to be aware of the law (mens rea with respect to circumstance)
iv. State ex rel. Attorney General v. Tally, p. 689 (accomplice)
1. sent telegram instructing operator to ignore telegram warning Ross that he was
being chased by armed men
2. Rule: aiding and abetting need not be but-for cause of the commission of the crime
3. Key: Did succeed in aiding or abetting? vs. Was the crime committed?
v. Hypos p. 691:
1. Hicks deliberately encourages but Rowe is deaf (TL: no actus reus; MPC: guilty)
2. Hicks part of group of 100 cheering (no need to be but-for cause, TL/MPC: guilty)
3. Hazelwood Operator ignored but unable to deliver (TL: no actus reus; MPC:
guilty)
4. Operator complied, pursuers didnt succeed (TL: no crime; MPC: attempt? guilty)
5. Pursuers caught up but resisted by Ross (TL: guilty; MPC: guilty)
6. Brother knew telegraph was sent, operator ignored (TL: actus reus satisfied)