Common law MPC Relevant cases

Specific intent crimes: only have to Terms: purposely, knowingly, Ducker

show mens rea and actus reus as per recklessly, and negligently
the statute PLUS some additional  No distinction b/t specific
mens rea that is required (ex. and general crimes
breaking and entering w/ intent to
commit a felony is specific intent)
Mens rea General intent crimes: only have to
show mens rea and actus reus as per
the statute
 No clear bright line here, but
defenses depend on the
distinction

The crime must be a manifestation of No definition of a voluntary act, but Jones, Williquette
the actor’s free will no punishment for involuntary act.
 Can only be liable for conduct
done voluntarily (Martin) Omissions: Liability for commission
(applies to MPC too) of an offense can’t be based on an
 Must commit a specific ACT omission unaccompanied by action
UNLESS (1) omission is made
Actus reus Omissions: FOUR situations where a expressly sufficient by law, or (2) A
failure to act constitutes a criminal duty to perform is otherwise
breach of duty to provide care: imposed by law.

1. A statute imposes the duty

2. Where one stands in a certain
status relationship to one
another
 3. Where one has assumed a
contractual duty to care for
another
4. Where one has voluntarily
assumed the care of another
and has secluded them as to
prevent others from
rendering aid.

Homicide
Premeditated + intentional killing of No first degree murder, only Ramirez, Davis
another; malice aforethought (express murder. Either an intentional killing
or implied) w/ both a period of or a reckless killing
premeditation and deliberation
 Premeditation determined by A killing committed with a
looking @ planning of the killing, purposefully or knowingly level of
motive, and manner, and may mens rea; purposeful meaning actor
contain a cool-down period intended to kill and knowing
 Deliberation: intent to commit meaning they commit an act and
First-degree murder the murder, requires coolness of know the high probability that harm
purpose or reflection is very likely to occur
 SPECIFIC INTENT: only specific  Can also be committed recklessly
intent homicide with circumstances of extreme
 Malice aforethought inferred indifference to the value of
when the killing is done human life
deliberately and w/  Encompasses murders done
premeditation during perpetration of felony
(see felony-murder box)
 SPECIFIC INTENT
 A knowing (intentional) killing of No second-degree murder, only Burley
another; still requires malice murder (see above)
aforethought but not premeditation Corollary is reckless murder: murder
or deliberation committed “under circumstances
 Two types: (1) depraved heart manifesting extreme indifference to
(disregard to human life and the value of human life”
Second-degree murder should’ve known that conduct
would be a risk to human life) and
(2) where serious harm was
intended but a killing occurs
 Extent of indifference to human
life a question for the jury (Burley)
 GENERAL INTENT
When there is an intentional or (Just “manslaughter” for MPC): Hinds, Suprenant
knowing killing of another in a state of Committed (1) recklessly or (2)
passion produced by adequate under extreme mental or emotional
provocation which would lead a disturbance for which there is a
reasonable person to act in an reasonable explanation or cause
irrational manner.  Recklessly: when actor
 Provocation must be reasonable disregards likely dangerous result
BOTH subjectively and objectively of their conduct (SUBJECTIVE
Voluntary manslaughter  Provocation must come from STANDARD ONLY)
person who was killed  Allows for reasonable, but
 State of passion must be mistake beliefs
continuous; insufficient time to  Broader than common law;
cool off from provocation (both specific provocative act not
objectively and subjectively) required
 Words are not enough  Decedent doesn’t have to be
 Usually raised as a defense provoker
 Narrower than MPC
  No fixed categories of
provocation or rigid cooling off
rule
A killing caused by reckless or No involuntary manslaughter; only Noakes, McCoy
negligent conduct that was negligent homicide
insufficiently blameworthy to  Inadvertence to risk coupled
constitute a murder but more with judgment that the
culpable than civil negligence. actor’s failure to perceive the
 Will be upheld if def. should’ve risk involves a gross deviation
known that their conduct was from the standard of care
likely to cause substantial that a reasonable person
harm (Noakes) would observe in the actor’s
Involuntary
 A def. acts recklessly when situation.
manslaughter they consciously disregard a
substantial and unjustifiable
risk of harm (Brooks)
 Violation of statute or
ordinance that protects public
safety is enough to show mens
rea (Powell)
 Type of invol. Manslaughter =
vehicular homicide
When the killing of another is No technical felony-murder rule, but Blair, Portillo
committed in the perpetration of or killings done during the perpetration
attempt to perpetrate another felony. of a felony constitute murder
 Transfers the mens rea of the  Recklessness and
Felony-murder underlying felony to meet the indifference needed for
mens rea of the murder that murder conviction are
occurs (Blair) presumed if the actor is
engaged or is an accomplice
in the commission of, or an
  One continuous transaction and attempt to commit, or flight
“temporary place of safety” rule after committing or
(Portillo) attempting to commit
 Not applicable if (1) not a robbery, rape or deviate
continuous act (2) no causal link sexual intercourse by force
(3) underlying felony an integral or threat of force, arson,
part of the homicide (e.g. assault burglary, kidnapping, or
w/ deadly weapon) felonious escape.”
 Usually considered first-degree  Presumption of recklessness
murder and indifference is
 Requires BUT-FOR CAUSATION; if rebuttable; not the case
yes, then felony-murder with CL
DEFENSES
Non-aggressor is justified in using The use of fore upon or toward Brown
force upon another if he reasonably another person is justifiable when
believes such force is necessary to the actor believes that such force is
protect himself from imminent use of immediately necessary for the
unlawful force by the other person. purpose of protecting himself
 Defense of proportionality against the use of unlawful force by
 Retreat is required unless it is such other person on the present
impossible occasion.
Self-defense  (1) honestly and reasonably
believe force in self-defense is Subjective: allows jury to look at
necessary; (2) imminent danger of; whether defendant w/ their own
(3) unlawful bodily harm [death or experience and situation, would
serious bodily harm for deadly reasonably believe that they were in
force], (4) reasonable amount of immediate danger of severe injury or
force [proportionality]; (5) not the death.
initial aggressor; (6) retreat  Includes risk of sexual assault
[majority of jurisdictions]
  Use of force must be IMMINENT  Only have to retreat if you can do
so with complete safety
 Use of force must be
IMMEDIATELY NECESSARY
(broader than CL)
Women who experience cycles of Same as CL Bechtel
Battered women’s abuse that allow them to develop
coping mechanisms instead of flight
syndrome mechanisms

Can use M’Naghten test but states A person is not responsible for Clark, Freeman
have their own rules for determining criminal conduct if that the time of
insanity (as seen in Clark v. AZ) such conduct as a result of mental
disease or defect he lacks substantial
Test: At the time of committing of capacity either to appreciate the
the act, the party accused was wrongfulness of his conduct or to
laboring under such a defect of conform his conduct to the
reason, from disease of the mind, as requirements of law. (2) As used in
not to know . . . this article, the terms “mental
Insanity disease or defect” do not include an
The nature and quality of the act abnormality manifested only by
he was doing (cognitive repeated criminal or otherwise
incapacity), or antisocial conduct (e.g. narcotics
addiction, recidivism)
If he did know it, that he did not  Demonstrated in Freeman
know that what he was doing
was wrong (moral incapacity) Incapacity as a matter of degree

Requires total incapacity

 Must be actual threat made Available when liability of a crime Martin, Contento-
 Cannot be used as a defense for would not be found when the Pachon
murder conduct is necessary, harm is
 Threat must be made to oneself or imminent, and there is a fair
to a family member probability of harm
 Threat must be IMMEDIATE  No requirement for a threat of
Duress actual physical force
 Duress can be used for defense
to murder
 No requirement about whether
threat is toward you or family
member
 Threat must be IMMINENT
Only a defense to specific intent Defense available for purpose and Hatcher
crimes (e.g. no manslaughter, only knowledge, but not for recklessness
first-degree murder)
Intoxication
Must be sufficient evidence to prove
impairment before defense will be
available.
Factual impossibility: NO DEFENSE Factual impossibility: NO DEFENSE
Pure legal impossibility: DEFENSE Pure legal impossibility: DEFENSE
AVAILABLE AVAILABLE
Hybrid legal impossibility: talk about it Hybrid legal impossibility: NO
Impossibility like legal impossibility; available DEFENSE AVAILABLE
defense, but trend is to consider it as
more like factual impossibility b/c it
involves a factual mistake (so defense
more likely to be unsuccessful)
 Specific intent crimes: honest mistake Mistake of fact available if it Freeman
General intent crimes: honest AND negates required mens rea of
reasonable mistake purpose, knowledge, or recklessness
Mistake-of-fact Only a defense if the mistake
precludes the existence of mental
state necessary to commit the crime.
(Freeman)
General rule: ignorance of the law not Same as CL Kipp
an excuse, unless law requires
knowledge of its illegality, or
Mistake-of-law government instructions or
interpretation of the law that turns
out to be incorrect (Kipp ex.)

Complicity, Conspiracy, and Attempt

The expressed or implied intent in Two step inquiry for accomplice Standeger, Lane,
helping an actor carry out a crime. liability: 1: did the accomplice act Merritt, Potts,
w/ the intent of promoting or Soares, Kaplan
Merger crime w/ crime that the facilitating the commission of
principal actor commits, but is the offense? Did he possess the
charged separately and independently specific intent to facilitate the
crime of murder? 2: examine the
Complicity (charged w/
-Participation must be shown; mere actions of the accused to
same crime as principal) presence not enough determine whether such actions
-Mens rea: intent to help w/ crime rise to the level of criminal
and intent required for actual activity, such that the accused
underlying crime has promoted or facilitated the
crime. (Potts) mere presence not
NY v. Kaplan: Most jurisdictions enough
require a defendant convicted as
 an accomplice to “intend” to aid Objective requirements: aid or agree
the principal . . . but the intent so or attempt to aid
references is not the same as the
intent required to prove Mens rea: Act w/ purpose of
commission of the substantive act. promoting or facilitating commission
of offense
Objective requirements: Assisting or  Result is the same as
encouraging substantive crime

Mens rea: Act w/ purpose of DEFENSE AVAILABLE for termination

promoting or facilitating commission
of offense
 Result is trending toward MPC
rule

NO DEFENSE for termination

An agreement, express or implied, Mens rea: intent to organize the Huff, Palmer,
between two or more person to crime, purposefully; mere Blankenship,
commit a criminal act or series of knowledge not enough Rosado, Pinkerton
criminal acts, or to accomplish a legal  Only requires unilateral
act by unlawful means conspiracy (undercover police
 Unilateral vs. bilateral; allowed)
Conspiracy (its own depends on state (trending  No vicarious liability for overt act
crime; conspiracy to toward unilateral but rule
majority still require bilateral)
commit x)
Key mens rea of “purpose to
Mens rea: Must show (1) the intent to promote the object of the
agree with another person to commit conspiracy”  requires more than
a criminal act; and (2) the intent to knowledge of illegality or even
commit the criminal act itself. intent to facilitate (e.g. repeated
transactions, inordinate profits,
 An overt act done by one person assistance in concealment could be
in furtherance of the ultimate goal enough)
of the conspiracy can be liable to
other members of the conspiracy Elements: purpose to promote the
(Pinkerton) object of the conspiracy,
 Mere knowledge not enough; agreement, overt act
must show intent to join
(Blankenship: financial stakes test)  MPC does NOT adopt rule
that permits co-conspirators
Co-conspirators can be held criminally to be held criminally liable
liable for any crime committed by co- for the acts of other co-
conspirators, if they were committed conspirators in furtherance
in the course of the conspiracy within of the conspiracy
the scope of an unlawful project, and
were reasonably foreseeable Legal impossibility NOT a defense
(Pinkerton)

Can be convicted of conspiracy to

commit crime AND the crime itself

Legal impossibility is a defense

 ALWAYS A SPECIFIC INTENT CRIME; Three elements: Maestas, Gibson,
must have intent of committing the (1) Purposely engages in conduct Peaslee, Rizzo,
specific crime that would’ve constituted the Jackson
 Actor must (1) intentionally crime
commit the acts that (2) Does or omits anything w/
constitute the attempt (e.g. purpose of causing offense
act that bring them in w/o any further actions
proximity to commission of an needing to be taken
offense) AND (2) must perform (3) Purposely does or omits to
these acts w/ specific intent of do anything that they believe
committing the target crime. to be an act of omission
(Peaslee, Jackson) constituting a substantial
step in course of conduct
Intent can be inferred; direct proof planned to culminate in
Attempt: (attempt to not necessary (Gibson) commission of crime.
commit x) Must affirmatively desire to engage
Various tests, varies by jurisdiction:: in the conduct or cause the result of
physical proximity test, dangerous the principal offense
proximity test, probable desistance
test, etc. Uses “substantial step test”: shift
emphasis to what the actor has
already done, while common law
looks at what remains to be done

-No requirement of whether actor

would’ve desisted
 Sentencing
(CA v. Brown): 2 prerequisites to a valid death sentence: Brown
(1) Sentencers can’t be given unbridled discretion in determining the
fates of those charged w/ capital offenses.
(2) Capital defendant must be allowed to introduce any relevant
mitigating evidence regarding his “character or record and any
circumstances of the offense.”

Death penalty statutes usually have 4 parts:

Death penalty (1) Definition of the type of homicide for which death penalty is
authorized
(2) List of aggravating circumstances
(3) List of mitigating circumstances
(4) Set of unique procedures applied only in capital cases

Death penalty often applied in discriminatory fashion

Capital punishment unconstitutional for non-homicide crimes
No death penalty for juveniles
Graham v. Florida: proportionality is central to Eighth Amendment Graham, Miller
 Compare gravity of the offense and severity of the sentence, THEN
compare w/ sentence of other similar offenders
 Graham est. that life w/o parole for juvenile non-homicide is
Proportionality unconstitutional

Miller v. AL: punishment for a crime should be graduated an proportioned to

the offender and the offense; youth matters