CRIMINAL LAW OUTLINE

I. General Matters
A. Theories of Punishment
1. Incapacitation (Restraint)
While imprisoned, a criminal has fewer opportunities to commit acts causing
harm to society
2. Special Deterrence
Punishment may deter the criminal from committing future crimes
3. General Deterrence
Punishment may deter person other than the criminal from committing similar
crimes for fear of incurring the same punishment
4. Retribution
Punishment is imposed to vent society’s sense of outrage and need for revenge
5. Rehabilitation
Imprisonment provides the opportunity to mold or reform the criminal into a
person who upon return to society, will conform her behavior to societal norms.
6. Education
The publicity attending the trial, conviction, and punishment of some criminals
serves to educate the public to distinguish good and bad conduct and to develop
respect for the law
B. Classification of Crimes
At common law, all crimes were divided into three classes: treason, felonies, and misdemeanors.
Several additional means of classifying crimes are now frequently employed either by the courts
or by state statutory schemes.
1. Felonies and Misdemeanors
Most state now classify as felonies all crimes punishable by death or
imprisonment exceeding one year. Under such modern schemes, misdemeanors
are crimes punishable by imprisonment for less than 1 year or by a fine only. At
common law, the only felonies were murder, manslaughter, rape, sodomy,
mayhem, robbery, larceny, arson, or burglary; all other crimes were considered
misdemeanors.
2. Malum In Se and Malum Prohibitum
A crime malum in se (wrong in itself) is one that is inherently evil, either because
criminal intent is an element of the offense, or because the crime involves “moral
turpitude.” By contrast, a crime malum prohibitum is one that is wrong only
because it is prohibited by legislation.
Ex. malum in se= battery, larceny, drunken driving
Malum prohibitum= hunting w/o a license, failure to comply with FDA
Labeling, driving in excess of speed limit
3. Infamous Crimes
At common law, infamous crimes are all crimes involving fraud, dishonestly, or
the obstruction of justice. Under modern common law, expanded to include most
felonies.
4. Crimes Involving Moral Turpitude
 The concept of moral turpitude- committing a base or vile act- is often equated
with the concept of malum in se.
Conviction of a crime involving moral turpitude may result in the deportation of
an alien, disbarment of an attorney, or impeachment of a trial witness.
C. Principle of Legality- Void- for – Vagueness Doctrine
The Due Process Clause of the federal Constitution, found in the 5th and 14th amend., has been
interpreted by the S.C. to req. that no criminal penalty be imposed without fair notice that the
conduct is forbidden. The “void-for-vagueness” doctrine, which has been held to require
particular scrutiny of criminal statutes capable of reaching speech protected by the 1st amend,
incorporates 2 considerations:
1. Fair Warning
A statute must give a person of ordinary intelligence fair notice that his
contemplated conduct is forbidden by the statute.
2. Arbitrary and Discriminatory Enforcement Must be Avoided
A statute must not encourage arbitrary and erratic arrests and convictions.
D. Constitutional Limitations on Crime Creation
In addition to the constitutional requirement that a criminal statute be sufficiently specific to
provide fair warning and prevent arbitrary enforcement, Art. I of the federal Const. places two
substantive limitations on both federal and state legislatures.
1. No Ex Post Facto Laws
The Constitution expressly prohibits ex post facto laws. The S.C has defined this
as one that operates retroactively to:
a. Make criminal an act that when done was not criminal;
b. Aggravate a crime or increase the punishment therefore;
c. Change the rules of evidence to the detriment of criminal defendants as a class;
or
d. Alter the law of criminal procedure to deprive criminal defendants of a
substantive right.
2. No Bills of Attainder
Bills of attainder area also constitutionally prohibited. A bill of attainder is a
legislative act that inflicts punishment or denies a privilege without a judicial trial.
Although a bill of attainder may also be an ex post facto law, a distinction can be
drawn in that an ex post factor law does not deprive the offender of a judicial trial.
E. Interpretations of Criminal Statutes
1. Plain Meaning Rule
When the statutory language is plain and its meaning clear, the court must give
effect to it even if the court feels that the law is unwise or undesirable. An
exception to this rule exists if the court believes that applying the plain meaning
of a statute will lead to injustice, oppression, or an absurd consequence.
2. Ambiguous Statutes Strictly Construed in Favor of Defendant
The rule of lenity requires than an ambiguous criminal statute must be strictly
construed in favor of the defendant. Ambiguity should be distinguished from
vagueness.
An ambiguous statute is one susceptible to 2 or more equally reasonable
interpretations.
 A vague statute is one that is so unclear as to be susceptible to no reasonable
interpretation.
F. Merger
1. Common Law- Merger
a. Merger of Misdemeanor into Felony
at common law, if a person engaged in conduct constituting both a felony
and a misdemeanor, the misdemeanor is merged into the felony.
b. NO Merger among Offenses of Same Degrees
2. Current Rule- No Merger
Generally no merger with the following exceptions:
a. Merger of Solicitation or Attempt into Completed Crime
one who solicits another to commit a crime (where solicitation itself is a
crime) cannot be convicted of both the solicitation and the completed
crime (if the person solicited does complete it). Similarly, a person who
completes a crime after attempting it may not be convicted of both the
attempt and the completed crime.
b. Conspiracy does not merge with the complete offense (can be convicted of
robbery and conspiracy to commit robbery)
c. Merger of Lesser Included Offenses into Greater Offenses
lesser offenses merge into greater offenses

II. ESSENTIAL ELEMENTS OF A CRIME

A. Elements of a Crime
Culpability under Anglo- American criminal law is founded upon certain basic premises that are
more or less strictly observed by legislatures and courts when formulating the substantive law of
crimes. Consequently, the prosecution is generally required to prove the following elements of a
criminal offense:
1. Actus reus (guilty act): a physical act (or unlawful omission) by the defendant;
2. Mens Rea (guilty mind): the state of mind or intent of the defendant at the time of his
act;
3. Concurrence: the physical act and the mental state that existed at the same time; and
4. Harmful Result and Causation: a harmful result caused (both factually and
proximately) by the defendant’s act.

Virtually all crimes require a physical act and may require some sort of intent. Many crimes also
require proof of certain attendant circumstances without which the same act and intent would not
be criminal.
Ex. the crime of receipt of stolen property requires that the property received has in fact
been stolen. If the D receives property (the act) that he believes to have been stolen (the
mental element), when in fact the property has not been stolen, the absence of this
required circumstance renders the D not liable for receipt of stolen property.
Other crimes require result and causation. Homicide, for ex., requires that the victim die
and that the defendant’s act be the cause of death.
B. Physical Act
For there to be criminal liability, the defendant must have either performed a voluntary physical
act or failed to act under circumstances imposing a legal duty to act.
For this purpose, an act is defined as a bodily movement. A thought is not an act. Therefore,
bad thoughts alone cannot constitute a crime.
Speech, unlike thought, is an act that can cause liability (e.g. perjury, solicitation).

1. The Act must be VOLUNTARY

The defendant’s act must be voluntary in the sense that it must be conscious exercise of
the will.
Rationale: An involuntary act will not be deterred by punishment. The following acts are
NOT considered “voluntary” and there cannot be the basis for criminal liability:
a. Conduct that is not the product of the actor’s determination
ex. A shoves B into C with the result that C falls to his death. B cannot be
liable for C’s death.
b. Reflexive or convulsive acts.
c. Acts performed while the defendant was either unconscious or asleep unless the
defendant knew that she might fall asleep or become unconscious and engaged in
dangerous behavior.
2. Omission as an “Act”
Although most crimes are committed by affirmative action rather than by nonaction, a
defendant’s failure to act will result in criminal liability provided 3 requirements are
satisfied.
a. Legal Duty to Act
the defendant must have a legal duty to act under the circumstances. A legal duty
to act can arise from the following sources:
1. a statute (e.g. filing an income tax return or reporting an accident)
2. a contract obligating the defendant to act, such as one entered into by a
lifeguard or a nurse.
3. the relationship between the defendant and the victim, which may be
sufficiently close to create a duty.
Ex. a parent has the duty to prevent physical harm to his or her
children
- a spouse has the duty to prevent harm to his or her spouse
4. the voluntary assumption of care by the defendant of the victim.
Although in general there is no common law duty to help someone in
distress, once aid is rendered, the Good Samaritan may be held criminal
liable for not satisfying a reasonable standard of care.
5. The creation of peril by the defendant
b. Knowledge of Facts Giving Rise to Duty
As a general rule, the duty to act arises when the defendant is aware of the
facts creating the duty to act (e.g. the parent must know that his child is
drowning before his failure to rescue the child will make him liable).
However, in some situations the law will impose a duty to learn the facts
(e.g. a lifeguard asleep at his post would still have a legal duty to aid a
drowning swimmer).
c. Reasonably Possible to Perform
 It must be reasonably possible for the defendant to perform the duty or to
obtain the help of others in performing it.
Ex. a parent who is unable to swim is under no duty to jump in the
water to attempt to save his drowning child.
3. Possession as an “Act”
Criminal statutes that penalize the possession of contraband generally require only that
the defendant have control of the item for a long enough period to have had an
opportunity to terminate the possession. The defendant must be aware of his possession
of the object but need not be aware of its illegality.
C. Mental State
1. Purpose of Mens Rea Requirement
The reason that mens rea is normally required is to distinguish between
inadvertent or accidental acts and acts performed by one with a “guilty mind.”
The latter type of act is more blameworthy and, arguably, can be deterred.
However, in some cases (strict liability crimes), mens rea is not required.
2. Specific Intent
If the definition of a crime requires not only the doing of an act, but the doing of it
with a specific intent or objective, the crime is a “specific intent” crime.

a. Significance
it is necessary to identify specific intent for two reasons:
1. Need for Proof
The existence of a specific intent cannot be inferred from the doing
of the act. The prosecution must produce evidence tending to
prove the existence of the specific intent.
2. Applicability of Certain Defenses
Some defenses, such as voluntary intoxication and unreasonable
mistake of fact, apply only to specific intent crimes.
b. Enumeration of Specific Intent Crimes
The major specific intent crimes and the intent they require are as follows:
1. Solicitation: Intent to have the person solicited commit the crime;
2. Attempt: Intent to complete the crime;
3. Conspiracy: Intent to have the crime completed;
4. First degree of premeditated murder (where so defined by statute);
Premeditated intent to kill;
5. Assault: Intent to commit a battery;
6. Larceny and robbery: Intent to permanently deprive another of his
interest in the property taken;
7. Burglary: Intent at the time of entry to commit a felony in the dwelling
of another;
8. Forgery: Intent to defraud
9. False pretenses: Intent to defraud; and
10. Embezzlement: Intent to defraud.
3. Malice- Common Law Murder and Arson
Although the intents required for the “malice” crimes- common law murder and
arson- sound similar to specific intent (e.g. the “intent to kill” for murder), these
 crimes are NOT open to the specific intent defenses. The common law created
this special mental state category especially to deny to murder and arson, the
specific intent defenses. To establish malice in these cases, the prosecutor need
only show that the defendant recklessly disregarded an obvious or high risk that
the particular harmful result would occur.
4. General Intent- Awareness of Factors Constituting Crime
Generally, all crimes require “general intent,” which is an awareness of all factors
constituting the crime, i.e., the defendant must be aware that she is acting in the
proscribed way and that any attendant circumstances required by the crime are present.
(Note that the defendant need not be certain that these attendant circumstances exist; it is
sufficient that she is aware of a high likelihood that they exist.)
Ex. to commit the crime of false imprisonment the defendant must be aware that
she is confining a person, and that the confinement has not been specifically
authorized by law or validly consented to by the person confined.

a. Inference of Intent from Act

A jury can infer the required general intent merely from the doing of the
act. It is not necessary that evidence specifically proving the general
intent be offered by the prosecution.
b. Transferred Intent
If a defendant intended a harmful result to a particular person or object
and, in trying to carry out that intent, caused a similar harmful result to another
person or object, her intent will be transferred from the intended person or object
to the one actually harmed. Any defenses or mitigating circumstances that the
defendant could have asserted against the intended victim (e.g. self-defense,
provocation) will also be transferred in most cases. The doctrine of transferred
intent most commonly applies to homicide, battery, and arson. It does NOT apply
to attempt.
Ex. A shoots B intending to kill him. Due to bad aim, she hits C, killing
him. A is guilty of C’s murder as her intent to kill B transfer to C and may
also be guilty of the attempted murder of B.

Compare: A shoots at B intending to kill him. She hits C but only

wounds. A may be guilty of attempted murder of B, but she is not guilty
of attempted murder of C as transferred intent does not apply to attempt.
c. Motive distinguished
The motive for a crime is distinct from the intent to commit it. A motive
is the reasons of explanation underlying the offense. It is generally held that
motive is immaterial to substantive criminal law. A good motive will not excuse
a criminal act. On the other hand, a lawful act done with bad motive will not be
punished.
Ex. an impoverished woman steals so that her hungry children may eat,
despite her noble motive- feeding her children- the woman could be held
criminally liable for her acts because her intent was to steal.
5. Strict Liability Offenses
 A strict liability offense is one that does not require awareness of all of the factors
constituting the crime. Generally, the requirement of a state of mind is not abandoned
with respect to all elements of the offense, but only with regard to one or some of the
elements.
The major significance of a strict liability offense is that certain defenses, such as
mistake of fact, are not available.
a. Identification of Strict Liability Offenses
Strict liability offenses, also known as public welfare offenses, are
generally “regulatory” offenses, i.e. offenses that are part of a regulatory
scheme. They generally involve a relatively low penalty and are not
regarded by the community as involving significant moral impropriety.
Note that the mere fact that a statute is silent on the question of
mental state does not necessarily mean that the offense is a strict
liability offense.
If no mental state is expressly required by the statute, the courts
may still interpret the statute as requiring some mens rea,
especially if the statute appears to be a codification of a traditional
common law offense or if the statute imposes a severe penalty.
Ex. federal legislation prohibits the transfer of firearms not
registered under federal law. It is not a defense if the defendant
was ignorant of the fact that the firearm was not registered because
this is a strict liability offense. Awareness of the fact of
nonregistration is not necessary, although it is necessary that the
defendant have been aware of the fact that she possessed a firearm.
Compare: federal legislation requires registration of any
fully automatic machinegun. The statue is silent on the question of
mental state and provides a penalty of up to 10 years’
imprisonment. Defendant may assert as a defense that he was not
aware that the weapon in his possession was automatic. The type
of statute and the harsh penalty indicate that Congress did not
intent to dispense with the mens rea requirement.
Staples v. U.S.
b. Constitutionality
The majority view is that strict liability offenses are constitutional.
Exception: S.C. struck down as a violation of due process a Los Angeles
municipal ordinance imposing strict liability for failure to register as a felon. The
key factor to the court’s decision was the absence of “circumstances which might
move one to inquire as to the necessary of registration.” Note: the scope of this
holding is limited to statutes making criminal the failure to register.
6. Model Penal Code Analysis of Fault
The MPC advocates the elimination of the ambiguous common law distinction
between general and specific intent. Instead, the MPC proposes 4 categories into
which the mental component of a criminal offense (i.e. the element of fault) can
be characterized. Because consistent use of these categories leads to analytical
clarity, they have been incorporated into several state criminal codes. They
 likewise provide a convenient way of analyzing problems on the exam that
incorporate statutes.

1) Purposely
A person acts purposely with respect to his conduct when it is his
conscious object to engage in certain conduct or cause a certain result, e.g.
burglary.
2) Knowingly
A person acts knowingly with respect to the nature of his conduct when he
is aware that his conduct is of that nature or that certain circumstances
exist. He acts knowingly with respect to the result of his conduct when he
knows that his conduct will necessarily or very likely cause such a result.
Conduct performed knowingly also satisfies the mental state of a statute
that requires willful conduct.
3) Recklessly
A person acts recklessly when he consciously disregards a substantial or
unjustifiable risk that circumstances exist of that a prohibited result will
follow, and this disregard constitutes a gross deviation from the standard
of care that a reasonable person would exercise in the situation.
An act performed recklessly is also performed wantonly. Recklessness
requires that the actor take an unjustifiable risk and that he know of and
consciously disregard the risk.
Mere realization of the risk is not enough. He must know that injury
might result (if he knows that it is certain to result, he acts knowingly).
Thus, recklessness involves both objective (“unjustifiable risk”) and
subjective (“awareness”) elements.
b. Negligence
A person acts negligently when he fails to be aware of a substantial and
unjustifiable risk that circumstances exist or a result will follow, and such failure
constitutes a substantial deviation from the standard of care that a reasonable person
would exercise under the circumstances.
To determine whether a person acted negligently, an objective standard is used.
However, it is not merely the reasonable person standard that is used in torts; the
defendant must have taken a very unreasonable risk in light of the usefulness of his
conduct, his knowledge of the facts, and the nature and extent of the harm that may be
cause.
Ex. D held himself out to the public as a doctor even though he was not a licensed
physician. He treated a sick woman by wrapping her in kerosene soaked flannels
for three days. The Woman dies. D is guilty of manslaughter. His good intentions
were irrelevant. By objective standards, he took an unjustifiable risk.

1) Violation of Statute or Ordinance as Evidence of Negligence

Violation of a state statute, municipal ordinance, or administrative regulation
may- as in tort law- be evidence of liability.
 ex. A, driving in excess of the speed limit, hits and kills B, a pedestrian.
A’s speeding violation may be admissible as evidence of his negligence in
a prosecution for manslaughter.
c. Analysis of Statutes to All Material Elements of Offense
1. State of Mind Applies to All Material Elements of Offense
Often a statute will establish a culpable state of mind without indicating
whether it is required for all the material elements of the offense. In that case, the
specified state of mind applies to all material elements of the offense unless a
contrary purpose appears in the statute.
Ex. Under a statute imposing criminal liability on anyone who “knowingly
makes a sale of an intoxicating beverage to a minor,” the MPC would
require knowledge for each material element of the offense. Thus, if the
defendant can show that she did not know that a sale took place, that the
beverage was intoxicating, or that the purchaser was a minor, she will be
able to avoid liability.
2. General State of Mind Requirement- Recklessness
If the statute defining the offense (other than a strict liability offense) does
not include a state of mind requirement, the defendant must have acted with at
least recklessness with regard to each material element of the offense.
a. Higher Degree of Fault Suffices
Under the MPC’s hierarchy of fault levels, a showing of a higher
state of mind automatically satisfies a lower mental state
requirement of a statute. Thus, a showing that the defendant acted
purposely or knowingly will satisfy the general requirement of
recklessness.
b. Other Levels of Fault Must be Specified
Because a standard of recklessness is assumed where the state of
mind is not specified, if a lower standard of negligence will satisfy
liability, or if a higher standard of knowledge or purpose is
required, those standards must be indicated in the language of the
statute.
Ex. Under a statute creating criminal liability for anyone who
“sells intoxicating beverages to one whom he should know to be a
minor,” the material elements include the act of selling and the
attendant circumstances that the beverage be intoxicating and that
the purchaser be a minor. Under the MPC formula, a minimum
standard for recklessness is required as the state of mind for the
first 2 elements, while the 3rd element of the statute specifies that
only a negligence level of fault is required.
7. Vicarious Liability Offenses
A vicarious liability offense is one in which a person without personal fault may
nevertheless be held vicariously liable for the criminal conduct of another (usually an
employee). The criminal law doctrine of vicarious liability is analogous to the tort
doctrine of respondeat superior.
Note: Unlike strict liability, which dispenses with the mens rea requirement but retains
the requirement that the defendant have personally engaged in the necessary acts or
 omissions, vicarious liability dispenses with the personal actus reus requirement but
retains the need for mental fault on the part of the employee.
a. Limitation on Punishment
Because the imposition of criminal liability for faultless conduct is
contrary to the basic premise of criminal justice that crime requires fault
on the part of the accused, at least one state court has held that
imprisonment in such cases violates the due process guarantees of the state
constitution. The current trend in the legislatures is to limit vicarious
liability to regulatory crimes and to limit punishment to fines.
b. Implying Vicarious Liability from Underlying Strict Liability Offense
Despite some decisions to the contrary, the mere fact that the underlying
offense is clearly a strict liability offense should NOT imply a legislative
intent to impose vicarious liability.
Ex. a statute makes it a crime “for anyone to serve an alcoholic beverage
to a minor.” Although a bartender may be strictly liable under this statute
regardless of her belief that the customer was legally old enough to drink,
this statute should not be construed to impose liability on the tavern owner
who neither was present at the time the minor was served nor authorized
the actions of the bartender.
D. Concurrence of Mental Fault with Physical Act Required
The defendant must have had the intent necessary for the crime at the time he committed
the act constituting the crime. In addition, the intent must have prompted the act.
Ex. A decides to kill B. While driving to the store to purchase a gun for this purpose, A
negligently runs over B and kills him. A is not guilty of murder b/c although A caused
B’s death he had the intent to do so, this intent did not prompt the act resulting in B’s
death (i.e. A’s poor driving).
Compare: With the intent to kill B, A strangles B to the point of unconsciousness, but
does not actually kill B. Thinking B is dead, A buries B, B dies as a result. A is guilty of
murder in a majority of the jurisdictions. Most courts would find that the 2 acts were part
of a single transaction with a common intent.
E. Causation
Some crimes (e.g. homicide) require a harmful result and causation.

III. ACCOMPLICE LIABILITY

A. Parties to a Crime
1. Common Law
The common law distinguished 4 types to a felony:
1) principals in the 1st degree (person who actually engage in the act or omission that
constitutes the criminal offense)
2) principals in the 2nd degree (persons who aid, command, or encourage the principal
and are present at the crime)
3) accessories before the fact (persons who aid, abet, or encourage the principal but are
NOT present at the crime)
4) accessories after the fact (persons who assist the principal after the crime).
a. Significance of Common Law Distinctions
 At common law, the distinctions between the parties had a great deal of
procedural significance.
Ex. an accessory could not be convicted unless the principal had already been
convicted, although both could be convicted in a joint trial if the jury determined
the principal’s guilty 1st.
Most modern jurisdictions have abandoned this requirement, and an accessory
can be convicted even if the principal has evaded apprehension or has been tried
and acquitted.
2. Modern Statutes
Most jurisdictions have abandoned the distinctions. Under the modern approach,
all “parties come to the crime” can be found guilty of the criminal offense. For
convenience, this section will designate the actual perpetrator of the criminal act as the
principal and the other parties to the crime as accomplices.
a. Principal
A principal is one who, with the requisite mental state, actually engages
in the act or omission that causes the criminal result. Also, anyone who acts
through an innocent, responsible, or unwilling agent is classified as a principal.
Ex. A gives a poisonous drink to B to give to C. B does so; C drinks it and
dies. If B did not know that the drink was poisonous, or if B was mentally
ill or under duress, A, not B, is the principal. Note that the principal need
not be present when the harm results.
b. Accomplice
an accomplice is one who, with the intent that the crime be committed,
aids, counsels or encourages the principal before or during the commission
of the crime.
c. Accessory After the Fact
An accessory after the fact is one who receives, relieves, comforts, or
assists another, knowing that he has committed a felony, in order to help the
felon escape arrest, trial or conviction. The crime committed by the principal
must be a felony and it must be completed at the time the aid is rendered. Today,
the crime is usually called “harboring a fugitive,” “aiding escape,” or “obstructing
justice.”
B. Mental State- Intent Required
To be convicted as an accomplice under the prevailing common law rule, a person must have
given aid, counsel, or encouragement with the INTENT to aid or encourage the principal in the
commission of the crime charged. In the absence of a statute, most courts would hold that mere
KNOWLEDGE that a crime would result from the aid provided is sufficient for accomplice
liability, at least where the aid involves the sale of ordinary goods at ordinary prices. However,
procuring an illegal item or selling at a higher price because of the buyer’s purposes may
constitute a sufficient “stake in the venture” for a court to find intent to aid.
Ex. A tells B that he wants to buy a can of gasoline from B to burn a house. B sells A the
gas and A burns down the house. B is not liable as an accomplice to arson (unless it was
illegal to sell gas in cans or B charged A twice his usual price because of what A was
using the gas for).
C. Scope of Liability
An accomplice is responsible for the crime he did or counseled AND for any other crimes
committed in the course of committing the crime contemplated, as long as the other crimes were
PROBABLE or FORESEEABLE.
Ex. A commands B to burn C’s house, and B does so. The fire spreads to X’s house, and
it was foreseeable that it would do so. A is an accomplice to the burning of X’s house.

1. Withdrawal
One who has rendered encouragement or aid to another may avoid liability as an
accomplice if he withdraws from the crime before it is actually committed by the
principal. What is necessary for an effective withdrawal depends upon what the person
initially did.
a. if the person merely encouraged the commission of the crime, withdrawal
requires that he repudiate this encouragement.
b. if the person assisted by providing some material to the principal, withdrawal
requires at least that the person attempt to neutralize this assistance, e.g., by doing
everything possible to retrieve the material provided.

IV. INCHOACTE OFFENSES- ATTEMPT

A. Generally
The inchoate offenses are solicitation, attempt, and conspiracy. They are quite frequently
considered felonies. An inchoate offense is committed prior to and in preparation for
what may be a more serious offense. It is a complete offense in itself, even though the act
to be done may not have been completed. At common law under the doctrine of merger,
inchoate offenses were regarded as misdemeanors; if the principal offense was carried
out, they were considered felonies. The doctrine of merger has been abandoned in many
jurisdictions in cases involving a conspiracy, allowing an accused to be convicted of
BOTH conspiracy and the principal offense. However, an accused CANNOT be
convicted of either attempt AND the principal offense.
B. CONSPIRACY
1. Intro
At common law, a conspiracy was defined as a combination or agreement
between 2 or more persons to accomplish a lawful purpose by unlawful means,
a. No Merger- Conviction for Conspiracy and Completed Crime
b. Liability for one conspirator for crimes committed by other conspirators
One
One conspirator may, by virtue of his participation in the scheme, meet the
requirements for “aiding and abetting” the commission of crimes by his
co-conspirators and therefore be liable for those crimes as an accomplice.
Pinkterton Liability- Even if the conspirator did not have sufficient mental state for accomplice
liability, a separate doctrine provides that each conspirator may be liable for the crimes of all
other conspirators if 2 requirements are met:
i. the crimes were committed in furtherance of the objectives of the conspiracy
ii the crimes were a “natural and probable” consequence of the conspiracy, i.e.
foreseeable.
c. Attempt Distinguished
 In attempt cases, the law requires that there be a substantial step toward
commission of the crime. In conspiracy cases, at least at common law, the
agreement itself is normally sufficient to constitute the crime. Hence, in common
law conspiracy cases the law intervenes at an earlier stage than the planning of the
crime.
2. Elements
i. an agreement between 2 or more persons;
ii. an intent to enter into an agreement; and
iii. an intent to achieve the objective of the agreement.
Today many states require an overt act in furtherance of the conspiracy,
but mere preparation will usually suffice.
a. Agreement Requirement
the parties must agree to accomplish the same objective by mutual action.
The agreement need not be express.
1) Object of the Agreement
Has to be an agreement to commit a crime
2) Multiple Crimes
If there is an initial agreement among the parties to engage in a
course of criminal conduct constituting all the crimes, then there is
only 1 conspiracy.
3) Number of Conspiracies in Multiple Party Situations
a) Chain Relationship- One Large Conspiracy
series of agreements, all regarded as one large scheme
b) Hub and Spoke Relationships- Multiple Conspiracies
one participant enters into a number of sub agreements with
different persons, All of the agreements are similar in that they
have 1 common member. However, if it is established that the sub
agreements are reasonably independent of each other- the situation
will be regarded as involving numerous difference and independent
conspiracies.
4) Plurality Requirement- two guilty minds
Two guilty minds needed at common law
Unilateral at MPC
5) Wharton’s Type Problems
a. Wharton Rule
Where 2 or more people are necessary for the commission
of the substantive offense (e.g. adultery, dueling, sale of
contraband), the “Wharton Rule” states that there is NO crime of
conspiracy unless more parties participate in the agreement than
are necessary for the crime.
b. Mental State- specific intent
Conspiracy is a specific intent crime. Need 2 mental states:
1) intent to agree
2) intent to achieve objective
Ex. A conspiracy to commit a strict liability crime (for which intent is not required) requires
intent. So is A and B agree to persuade C, a 12 yr old to have sex with them but they believe she
is 21. They cannot be convicted of conspiracy to commit stat rape because conspiracy requires
knowledge of the vic’s age even though the completed crime down not.
c. Overt Act
Most states require an over act
3. Defenses
a. Impossibility- No defense
even if it was impossible to achieve the ultimate objective of the
conspiracy, the defendants can be found guilty of conspiracy itself.
Ex. A and B agree to rape C who they think is sleeping. She is dead, They
can still be convicted of conspiracy to rape.
b. Withdrawal- No defense to conspiracy charge
the general rule is that withdrawal from a conspiracy is NOT a defense to
a charge of conspiracy, because the conspiracy is complete as soon as the
agreement is made and an overt act is committed. (MPC recognizes
voluntary withdrawal as a defense if the defendant thwarts the success of
the conspiracy (e.g. by informing the police)).
1) Exception to no defense- Defense to Subsequent Crimes of Co-
Conspirators
A person may limit his liability for subsequent acts of the other
members of the conspiracy including the target crime for which the
conspiracy was formed, if he withdraws. To withdraw, he must perform an
affirmative act that notifies ALL members of the conspiracy, and such
notice must be given in time for them to have the opportunity to abandon
their places.

C. ATTEMPT
A criminal attempt is an act that, although done with the intention of committing a crime,
falls short of completing the crime. An attempt therefore consists of 2 elements: 1.) a specific
intent to commit the crime, and 2) an over act in furtherance of that intent.
1. Intent
The defendant must have the intent to perform an act and obtain a result that, if achieved,
would constitute a crime.
a. Attempt Requires Specific Intent
Regardless of the intent required for a completed offense, an attempt
always requires a specific intent.
For ex., attempted murder requires the specific intent to kill another
person, even though the mens rea for murder itself does not necessarily
require a specific intent to kill.
b. Attempt to Commit Negligent Crimes is Logically Impossible
A crime defined as the negligent production of a result cannot be
attempted, because if there were an intent to cause such a result, the
appropriate offense would be attempt to intentionally commit the crime
rather than the attempt to negligently cause the harm.
c. Attempt to Commit Strict Liability Crimes Requires Intent
 Although a strict liability crime does not require criminal intent, to attempt
a strict liability crime the defendant must act with the intent to bring about
the proscribed result.
2. Overt Act
The defendant must have committed an act beyond mere preparation for the offense.
Several tests have been used to determine whether the act requirement for attempt
liability has been satisfied:
a. Traditional Rule- Proximity Test
Traditionally, courts used a proximity approach; i.e., they have evaluated
the act based on how close the defendant came to completing the offense.
Under the typical proximity test, attempt requires an act that is
dangerously close to success.
Ex. Pointing a loaded gun at an intended victim and pulling the trigger is
sufficient under the proximity test, but going to the store to purchase
bullets or even driving to the intended victim’s house is insufficient.
People v. Rizzo
Other tests-
• Last act test – A criminal attempt only occurs when the actor has performed all the acts
they believe are necessary to commit the target offense.
• Physical proximity test – To be guilty of attempt, the actor’s conduct must be so near to
the completed offense that it would result in that offense actually happening if the actor
wasn’t hindered by outside circumstances.
• Dangerous proximity test – This is Holmes’s test: there’s no attempt unless the “danger
of success” is very great.
• Indispensable element test – There is no attempt if the actor has not obtained some
indispensable feature of the criminal plan.
• Probable desistence test – The actor has committed an attempt if they reached a point
where it’s unlikely that they would have “voluntarily desisted from his effort to commit
the crime”.
• Unequivocally (res ipsa loquitor) test – An act isn’t an attempt until it ceases to be
equivocal. This is an objectivist test.

b. Majority Rule- MPC Test

The MPC and most state criminal codes require that the act or omission
constitute a “substantial step in a course of conduct planned to culminate
in the commission of the crime.” In addition, an act will not qualify as a
substantial step unless it is strong corroboration of the actor’s criminal
purpose.
3. Defenses to Liability for Attempt
a. Impossibility of Success
Traditionally, the law distinguished between factual and legal impossibility. The
modern view reflected in the MPC which reaches the same result, is that
impossibility should not be a defense when the defendant’s actual intent is to do
an act or bring about a result proscribed by law.
For exam purposes, however you should understand and be able to apply the
traditional classifications of impossibility.
 1. Factual Impossibility is NO Defense
It is no defense to attempt that it would have been impossible for
the defendant to complete her plan, i.e., do all of those things that
she intended to do. This is factual impossibility.
Ex. A stops B on the street, points a gun at her and asks her to hand
over her money. Unbeknownst to A, B has no money. A is guilty
of attempted robbery.
a. Includes Impossibility Due to Attendant Circumstances
Impossibility is also no defense when the defendant
engages in conduct while mistaken about certain attendant
circumstances: Had the circumstances been as she believed
they, what she set out to do would be a crime.
Ex. Goods are stolen from A by B. B is apprehended and
the goods recovered. Police secure A’s permission to use
the goods trap C, a suspected fence. On police orders, B
takes the goods to C and offers to sell them, telling C that
they were stolen. C buys them. Since the goods are no
longer stolen (they are being used with the owner’s
permission), C is not guilty of receipt of stolen goods. In
most states and under the MPC C is guilty of the attempt to
steal stolen goods, with the requisite culpability, has
engaged in conduct that would constitute receipt of stolen
property if the circumstances were as he believed them to
be.
2. Legal Impossibility is a Defense
If those things that the defendant does or intends to do would not actually
be a crime, this is legal impossibility. All courts recognize this as a
defense. This rule covers only those situations in which defendants set out
to do things they mistakenly believe constitute crimes.
Note that legal impossibility defined in this way would also be a defense
under the MPC because the result is not proscribed by law.
Ex. B goes fishing, believing that fishing is prohibited in the lake in which
she is fishing. In fact, there is no prohibition against fishing in that lake;
thus, B cannot be charged with the completed crime of prohibited fishing.
Is B guilty of attempted violation of the criminal law making it a crime to
fish where fishing is prohibited? No, this is legal impossibility.
b. Abandonment
If the defendant has, with the required intent, gone beyond preparation, may she
escape liability by abandoning her plans? The general rule is that abandonment is
never a defense.
The MPC approach is that withdrawal will be a defense but only if:
1) It is fully voluntary and not made because of the difficulty of
completing the crime or because of an increased risk of apprehension; and
2) It is a complete abandonment of the plan made under circumstances
manifesting a renunciation of criminal purpose, not just a decision to
postpone committing it or to find another victim.
 4. Prosecution for Attempt
A defendant charged with a completed crime may be found guilty of either the
completed crime or an attempt to commit a crime as long as the evidence
presented supports such a verdict. The reverse is not true. A defendant charged
only with attempted may be convicted of the completed crime.
5. Punishment for Attempt
Most state punish attempt less severely than the crime attempted. The most
common statutory scheme permits a penalty up to one- half the maximum penalty
for the completed crime, with a specific maximum set for attempts to commit
crimes punishable by death or life imprisonment.
Under the MPC and some state statutes, an attempt may be punished to the same
extent as the completed crime, except for capital crimes and the most serious
felonies.

V. RESPONSIBILITY AND CRIMINAL CAPACITY

A. INSANITY
The insanity defense exempts certain defendants because of the existence of an abnormal
mental condition at the time of the crime. The various formulations differ significantly on what
effects a mental illness must have had to entitle the defendant to an acquittal.
Note that insanity is a legal term rather than a psychiatric one. Furthermore, insanity is a generic
term comprising many possible mental abnormalities, all of which have only one thing in
common: they are recognized by law as dictating certain legal consequences. Usually, the cause
of a defendant’s mental illness or insanity is irrelevant in determining the legal consequences.
1. Formulation of Insanity Defense
a. M’Naghten Rule
1. Elements
The traditional M’Naghten rule provides that a defendant is entitled to an
acquittal if the proof establishes that:
a. a disease of the mind
b. caused a defect of reason
c. Such that the defendant lacked the ability at the time of his
actions to either:
1) know the wrongfulness of his actions; or
2) understand the nature and quality of his actions
2. Application
a. Defendant with Delusions
if the defendant suffered from delusions (false beliefs), it is
necessary to determine whether his actions would have
been criminal if the facts had been as he believed them to
be.
Ex. A, because of mental illness, believed B wanted to kill
him. A killed B. A is not entitled to an acquittal on insanity
grounds under the M’Naghten rule. Even if A’s delusion
had been accurate, he would not have been legally entitled
to kill B simply because B wanted to kill him.
b. Belief that Acts are Morally Right
 A defendant is not entitled to an acquittal merely because
he believes his acts are morally right, unless he has lost the
capacity to recognize that they are regarded by society as
wrong.
c. Inability to Control Oneself
Under the traditional interpretation given to the M’Naghten
rule, it is irrelevant that the defendant may have been
unable to control himself and avoid committing the crime.
Loss of control because of mental illness is no defense.
3. Evidence Admissible
In practice, the M’Naghten rule does not unduly restrict the
evidence heard by juries. Most jurisdictions admit any evidence
that reasonably tends to show the mental condition of the
defendant at the time of the crime.
b. Irresistible Impulse Test
Under the irresistible impulse test, a defendant is entitled to an acquittal if
the proof establishes that because of mental illness he was unable to
control his actions or to conform his conduct to the law. Contrary to what
the name irresistible impulse might imply, this inability need not come
upon the defendant suddenly. A number of jurisdictions apply both
M’Naghten and the Irresistible Impulse test. Thus a person is entitled to
an acquittal if he meets either test.
c. Durham Test
Under the Durham rule, a defendant is entitled to an acquittal if the proof
established that his crime was the “product of mental disease of defect.”
A crime is a “product of” the disease if it would not have been committed
but for the disease. In this way, the Durham test if broader than either the
M’Naghten or irresistible impulse tests; it was intended primarily to give
psychiatrist greater liberty to testify concerning the defendant’s mental
condition.
d. MPC test
Under this test, the defendant is entitled to an acquittal if the proof shows
the he suffered from a mental disease or defect and as a result lacked
substantial capacity to either:
i. Appreciate the criminality (wrongfulness) of his conduct; or
ii. Conform his conduct to the requirements of law.
This test combines the M’Naghten and the irresistible impulse tests by
allowing for the impairment of both cognitive and volitional capacity.
Highly praised, the MPC test is rapidly becoming the most popular
formulation, and the prevailing trend is toward its use.
2. Procedural Issues Related to Insanity Defense
a. Burdens of Proof
1. Presumption of Sanity and Burden of Producing Evidence
All defendants are presumed sane. The insanity issue is not raised, then,
until the defendant comes forward with some evidence tending to show
that he was insane under the applicable test. Depending upon the
 jurisdiction, this burden is carried either by a mere shred (or scintilla) of
evidence, or by evidence sufficient to raise a reasonable doubt as to sanity.

2. Burden of Persuasion
In some jurisdictions and under the MPC, once the issue has been raised,
the prosecution must prove the defendant was sane beyond a reasonable
doubt. In others, the defendant must prove his insanity, generally by a
preponderance of the evidence. Federal courts required the defendant to
prove insanity by clear and convincing evidence.
B. INTOXICATION
Intoxication may be caused by any substance. Alcohol, drugs, and medicine are the most
frequent. Evidence of intoxication may be raised whenever the intoxication negates the
existence of an element of a crime.
1. Voluntary Intoxication
Intoxication is self induced if it is the result of the intentional taking without duress of a
substance known to be intoxicating. The person need not have intended to become
intoxicated.
a. Defense to Specific Intent Crimes
Voluntary intoxication evidence may be offered, when the defendant is
charged with a crime that requires purpose (intent) or knowledge, to establish
that the intoxication prevented the defendant from formulating the requisite intent.
Thus, it may be a good defense to specific intent crimes, but usually will not be a
sufficient defense to general intent crimes.
Note, however, that it is generally held that voluntary intoxication cannot
further reduce homicide from second degree murder down to manslaughter.
The defense is not available if the defendant purposely becomes
intoxicated in order to establish the defense.
b. No defense to Crimes Requiring Malice or Recklessness
Voluntary intoxication is not a defense to crimes requiring malice,
recklessness or negligence, or crimes of strict liability. Thus, voluntary
intoxication is not a defense to common law murder, which requires a mens rea of
“malice forethought.”
Ex. after drinking heavily, A breaks into a house, wrongly thinking it is
her own. When surprised by B, the owner, A reacts with force, beating B
with her fists. While driving home A is cited for speeding. A will have the
defense of intoxication for burglary if as a result she did not know that the
house belong to B or did not have the intent the felony therein. She will
not have the defense of intoxication to battery because as defined battery
may be the result of recklessness. She will not have the defense to
speeding as it is a strict liability offense.
2. Involuntary Intoxication
Intoxication is involuntary only if it result from the taking of an intoxicating substance 1)
without knowledge of its nature, 2) under direct duress imposed by another, or 3)
pursuant to medical advice while unaware of the substance’s intoxicating effect.
 Involuntary intoxication may be treated as a mental illness, in which case a
defendant is entitlted to acquittal if, because of the intoxication, she meets
whatever test the jurisdiction has adopted for insanity.
3. Relationship to Insanity
Intoxication and insanity are two separate defenses. However, continuous,
excessive drinking or drug use may bring on actual insanity (e.g. delirium tremens).
Thus, a defendant may be able to claim both an intoxication defense and an insanity
defense.
C. INFANCY
1. Common Law
At common law, the defense of lack of capacity to commit a crime by reason of infancy
gave rise to three presumptions. Physical age (not mental age) at the time of the crime
(not at the time of trial governs.
a. Under Seven- no criminal liability
Under the age of 7, a child could not be held responsible for any crime
(conclusive presumption of incapability of knowing wrongfulness of acts).
b. Under Fourteen- Rebuttable Presumption of No Criminal Liability
Children between the ages of 7 and 14 were presumed incapable of
knowing the wrongfulness of their acts, but this presumption was
rebuttable by clear proof that the defendant appreciated the nature and
quality of his act (e.g. conduct undertaken to conceal the crime). Note,
however, that children under 14 were conclusively presumed incapable of
committing rape.
c. Over Fourteen- Adult
Children age 14 or older were treated as adults.
2. Modern Statutes
a. Some have Abolished Presumptions
A number of modern statutes have abolished the presumptions of the
common law and have provided that no child can be convicted of a crime
until a stated age is reached, usually 13 or 14. Other states, however,
retain the common law presumptions.
b. Juvenile Delinquency
All states have enacted some type of juvenile delinquency laws or have set
up special juvenile or family courts. These laws ordinarily provide that
with respect to conduct that would be deemed criminal if committed by an
adult, the juvenile court has exclusive jurisdiction over children under a
certain age, and concurrent jurisdiction (with the criminal courts) over
older children. In the “concurrent jurisdiction” situation, the child must be
“charged” with delinquency in juvenile court unless the juvenile court
waives jurisdiction and authorizes the trial of the child as an adult in
criminal court. In most jurisdictions, the common law immunity rules for
infants do not apply in juvenile courts because the primary goal is
rehabilitation rather than punishment.

VI. PRINCIPLES OF EXCULPATION

A. JUSTIFICATION
Under certain circumstances, the commission of a proscribed act is viewed by society as justified
and hence not appropriate for criminal punishment. Generally, the defendant must raise the issue
of justifiable use of force by introducing some evidence tending to show justification as an
affirmative defense. Once she has done this, the state may require the prosecution to prove that
the use of force was not justified, or it may impose on the defendant the burden of proving this
affirmative defense by a preponderance of the evidence.
1. SELF DEFENSE
a. Non-deadly Force
As a general rule, an individual who is without fault may use such force as
reasonably appears necessary to protect herself from the imminent use of
unlawful force upon herself.
There is NO DUTY TO RETREAT before using nondeadly force, even if
the retreat would result in no further harm to either party.
b. Deadly Force
A person may use deadly force in self-defense if 1) she is without fault, 2)
she is confronted with unlawful force, and 3) she is threatened with
imminent death or great bodily harm.
1. Without Fault
A person who has initiated an assault or provoked the other
party will be considered the aggressor.
2. Unlawful Force
The attacker must be using unlawful force (i.e. force that
constitutes a crime or a tort).
3. Threat of Imminent Death or Great Bodily Harm
The defendant must reasonably believe that she is faced
with imminent death or great bodily harm if she does not
respond with deadly force. The danger of harm must be a
present one. There is no right to use deadly force if harm is
merely threatened as a future time or the “attacker” has no
present ability to carry out the threat.
Ex. A, who has his arms tied behind his back, says to D, “I am
going to kill you.” D pulls out a gun and shoots A. No self
defense.
4. Retreat
Must a person retreat as far as possible before using deadly
force, if such retreat is possible without the person endangering
himself? For purposes of the examination, the majority rule is that
there is no duty to retreat. A person (other than the initial
aggressor) may use deadly force in self- defense even if this could
be avoided by retreating. Even in the minority of courts that
disagree with this rule, retreat is only sometimes necessary.
1st- no retreat is necessary unless it can be made in complete safety.
2nd- no retreat is necessary in several special situations:
1) where he attack occurs in the victim’s house;
2) where the attack occurs while the victim is making a lawful
arrest; and
 3) where the assailant is in the process of robbing the victim.
Ex. A is in a park, D walks up to A pulls a knife while approaching A and says “I am
going to kill you.” A pulls a gun and kills B. Under the majority rule, A has self defense
because A had no duty to retreat before using deadly force, as long as the force was
necessary to defend herself against imminent attack. Even under the minority approach
the answer might be yes for self defense, because even if A was under a general duty to
retreat before using deadly force, here is did not appear that such retreat could have been
done in complete safety.

c. Right of Aggressor to Use Self Defense

Generally, one who begins a fight has no right to use force in her own defense
during that fight. But an aggressor can “regain” her right ot use self- defense in 2 ways:
1) Withdrawal
An aggressor who, in good faith, effectively removes herself form the
fight, and communicates to the other person her desire to remove herself,
regains her right to use self defense.
2) Sudden Escalation
If the victim of the initial aggression suddenly escalates a “minor” fight
into one involving deadly force and does so without giving the aggressor
the chance to withdraw, the aggressor may use force in her own defense.
2. Defense of Others
There are 2 issues in determining whether a person who has used force to defend another person
is criminally liable for her acts.
a. Relationship with Person Aided
Must there be some special relationship between the defendant and the person in
whose defense she acted? The majority rule is NO. One may use force in defense of any
other person if the other requirements of the defense are met. A few jurisdictions require
that the person whom the defendant aided must either have been a member of the
defendant’s family or the defendant’s servant or employer.
b. Status of Person Aided
A defendant has the defense of defense of others only if she reasonably believed
that the person she assisted had the legal right to use force in his own defense. If in the
fat that person had no such legal right, does the defendant still have a defense? Yes, In
majority of jurisdictions, all that is necessary for the defense is the reasonable
appearance of the right to use force. In a minority of jurisdictions, the answer is no,
because the defendant “steps into the shoes of the person she defends” and therefore has
no defense if that person had no legal right to use force in self-defense.
3. Defense of a Dwelling
a. Nondeadly Force
A person is justified in the use of nondeadly force in defense of her dwelling
when, and to the extent that, she reasonably believes that such conduct is necessary to
prevent or terminate another’s unlawful entry into or attack upon her dwelling.
b. Deadly Force
One is generally justified in the use of deadly force in 2 situations:
1) Tumultuous Entry plus Personal Danger
 Use of deadly force is justifiable where the entry was made or attempted
in a riotous, violent, or tumultuous manner AND the person reasonable believes
that the use of force is necessary to prevent a personal attack upon herself or
another in the dwelling.
2) Felony
Use of deadly force is also justifiable where the person reasonable
believes that such force is necessary to prevent the entry into the dwelling by a
person who intends to commit a felony in the dwelling.
4. NECESSITY
Conduct otherwise criminal is justifiable if, as a result of pressure fro natural forces, the
defendant reasonable believed that the conduct was necessary to avoid some harm to society that
would exceed the harm caused by the conduct. The test is objective; a good faith belief in the
necessity of one’s conduct is insufficient. Causing the death of another person to protect
property is never justified. The defense of necessity is not available if the defendant is at fault in
creating a situation which requires that she choose between two evils.
Ex. Throwing cargo overboard during a violent storm, if necessary to save the lives of the
crew and other people on board a ship, would not constitute criminal damage to property.
On the other hand, throwing some members of the crew overboard to save the cargo
would never be justifiable.
a. Duress Distinguished
While duress involves a human threat, necessity involves pressure from
physical or natural forces.
Ex. A points a gun at B and threatens to kill B if she does not break into
C’s house and steal food. B does as she is told. B may raise the defense of
duress. If, however B is a starving victim of a plane crash in a desolate
area and commits the same act, she has the defense of necessity.
B. THE EXCUSE OF DURESS (ALSO CALLED COMPULSION OR COERCION)
A person is not guilty of an offense, other than homicide, if he performs an otherwise criminal
act under the threat of imminent infliction of death or great bodily harm, provided that he
reasonably believes death or great bodily harm will be inflicted on himself or on a member of his
immediate family if he does not perform such conduct. Threats to harm any 3rd person may also
suffice to establish the defense of duress. Note that an act committed under duress is termed
excusable rather than justifiable. The subtle distinction stems from the fact that criminal acts
performed under duress are condoned by society rather than encouraged.

C. OTHER DEFENSES
1. MISTAKE of IGNORANCE of FACT
a. Mistake Must Negate State of Mind
Ignorance or mistake as to a matter of fact will affect criminal guilty only if it
shows that the defendant did not have the state of mind required for the crime.
Ex. A, hunting in the woods, shoots at what he reasonably believes to be a
deer. In fact, it is B, who is killed. A’s mistake of fact establishes that he
did not have the state of mind required for murder.
Compare: A, hunting in the woods, shoots through the trees at a figure he
believes to be his enemy B, intending to kill him. In fact, the figure is c,
who is killed. A is guilty of murdering C despite his mistake of fact as to
 C’s identity, because A’s mistake does not negate his intent to kill a
person.
b. Requirement that the Mistake be Reasonable
1) Malice and General Intent crimes- Reasonableness Required
If the mistake or ignorance is offered to negate the existence of general
intent or malice, it must be a reasonable mistake or ignorance, i.e., the type
of mistake or ignorance that a reasonable person would have made under
the circumstances.
2) Specific Intent Crimes- Reasonableness Not Required
Any mistake of fact, reasonable or unreasonable, is a defense to a specific
intent crime.
Ex. A, leaving a restaurant, takes an umbrella, believing that it was the one
she had left there a week ago. In fact, it belongs to B. Is A guilty of
larceny? No, since A believed the umbrella was hers, she could not have
intended to deprive B of his right to it. Therefore, she lacked the state of
mind necessary for larceny. Since her mistake negates a specific intent, it
is not material whether it was a reasonable mistake or not.
c. Strict Liability Crimes- Mistake No Defense
Since strict liability crimes require no state of mind, mistake or ignorance of fact
is no defense to them.
2. Mistake or Ignorance of Law
a. General Rule- No Defense
It is not a defense to a crime that the defendant was unaware that her acts
were prohibited by the criminal law or that she mistakenly believed that
her acts were not prohibited. There is true even if her ignorance or
mistake was reasonable.
b. Mistake or Ignorance of Law May Negate Intent
If the mental state for a crime requires a certain belief concerning a
collateral aspect of the law, ignorance or mistake as to that aspect of the
law will negate the requisite state of mind. This situation involves
ignorance of some aspect of the elements of a crime rather than the
existence of the statue making the act criminal.
c. Exceptions
1) Statue Not Reasonably Available
The defendant has a defense if the statue proscribing her conduct was not
published or made reasonably available prior to the conduct.
2) Reasonable Reliance on Statute or Judicial Decision
The defendant has a defense if she acted in reasonable reliance on a statute
or judicial decision, even though the statute is later declared
unconstitutional or the decision is overruled. The defense is strongest
when the decision relied on was rendered by the highest court in the
jurisdiction.
3) Reasonable Reliance on Official Interpretation or Advice
At common law, it was no defense that the defendant relied on an
erroneous official statement of law contained in an administrative order or
grant, or in an official interpretation by the public officer or body
 responsible for the interpretation, administration, or enforcement of the
law.
The emerging rule, advocated by the MPC, provides a defense when the
statement is obtained from one “charged by law with responsibility for the
interpretation, administration, or enforcement of the law.”

VII. OFFENSES AGAINST THE PERSON

A. ASSAULT and BATTERY
1. BATTERY
Battery is the unlawful application of force to the person of another resulting in either
bodily injury or an offense touching. Simple battery is a misdemeanor.
a. State of Mind- Intent Not Required
A battery need not be intentional. It is sufficient that the defendant caused
the application of force with criminal negligence.
b. Indirect Application of Force Sufficient
The force need not be applied directly. Thus, it is sufficient if the force is
applied by a force or substance put in motion by the defendant.
Ex. battery may be committed by causing a dog to attack the victim or by
causing the victim to take a poisonous substance.
c. Aggravated Battery
Most statutes define certain acts as aggravated batteries and punish them
as felonies. Among the most common are batteries in which:
1) a deadly weapon is used (any ordinary object may become a deadly
weapon depending upon how it is used);
2) Serious bodily injury is caused; or
3) The victim is a child, woman, or police officer.
d. Consent as a defense
Contrary to the general rule that consent of the victim is not a valid
defense, some jurisdictions recognize consent as a defense to simple
battery and/or certain specified batteries, e.g. a medical operation, or
reasonable injuries incurred in consensual athletic contests.
2. ASSAULT
In a majority of jurisdictions, an assault is either:
i. an attempt to commit a battery; or
ii. the intentional creation- other than mere words of a reasonable apprehension
in the mind of the victim of imminent bodily harm.
A minority of jurisdictions limit assault to an attempt to commit a battery. Simple assault
is a misdemeanor.
a. Present Ability to Succeed
Some statues define assault as an unlawful attempt to commit a battery coupled
with a present ability to succeed. Lack of an ability to succeed precludes liability
under such statutes.
Ex. A points an unloaded gun at B, A pulls the trigger, thereby frightening
B. Under the present ability to succeed, A could not have succeeded in
committing a battery.
b. Battery Distinguished
 If there has been an actual touching of the victim, the crime can only be battery.
If there has been no such touching, the act may or may not constitute an assault,
depending on the circumstances.
c. Statutory Aggravated Assault
All jurisdictions treat certain “aggravated assaults” more severely than simple
assault. Such aggravated assault include, but are not limited to, assaults:
1) with a dangerous (or deadly) weapon;
2) with intent to rape, main, or murder.
B. HOMICIDE
1. Classifications of Homicides
At common law, homicides were divided into 3 classifications:
a. Justifiable homicides (those commanded or authorized by law);
b. Excusable homicides (those which there was a defense to criminal liability);
c. Criminal homicides.
2. Common Law Criminal Homicides
At common law, criminal homicides were subdivided into 3 different offenses:
a. MURDER- common law
Murder is the unlawful killing of another human being with malice aforethought.
Malice aforethought may be express or implied.
1) Malice Aforethought
In the absence of facts excusing the homicide or reducing it to
voluntary manslaughter, malice aforethought exists if the
defendant has any of the following states of mind:
i. intent to kill (express malice);
ii. intent to inflict great bodily injury;
iii. Reckless indifference to an unjustifiably high risk to human life
(“abandoned and malignant heart”); or
iv. intent to commit a felony (felony murder)
In the case of 2,3, 4 the malice is “implied”.
b. VOLUNTARY MANSLAUGHTER- common law
Voluntary Manslaughter is an intentional killing distinguishable from murder by
the existence of adequate provocation; i.e. a killing in the heat of passion.
1) Elements of Adequate Provocation
At common law, provocation would reduce a killing to voluntary
manslaughter only if it met 4 tests:
a. The provocation must have been one that would arouse sudden
and intense passion in the mind of an ordinary person such as to
cause him to lose his self-control;
b. The defendant must have in fact been provoked;
c. There must not have been a sufficient time between the
provocation and the killing for the passions of a reasonable person
to cool.
(This is a factual question that depends upon the nature of the
provocation and the attendant circumstances, including any earlier
altercations between the defendant and the victim); and
 d. The defendant in fact did not cool off between the provocation
and the killing.
2) When Provocation is Adequate
Adequate provocation is most frequently recognized in cases of:
a. being subjected to a serious battery or a threat of deadly force;
b. discovery one’s spouse in bed with another person.
3) Provocation Inadequate at a Matter of Law
At common law, some provocations were defined as inadequate as a
matter of law. The most significant was “mere words.”
Modern courts tend to be more reluctant to take such cases from juries and
are more likely to submit to the jury the question of whether “mere words”
or similar matters constitute adequate provocation.
4) Recent Expansion- Imperfect Self- Defense
Some states recognize an “imperfect self defense” doctrine under which a
murder may be reduced to manslaughter even though:
a. the defendant was at fault in starting the altercation; or
b. the defendant unreasonably but honestly believed in the
necessity of responding with deadly force.
c. INVOLUNTARY MANSLAUGHTER
2 types:
1. Criminal Negligence
If death is caused by criminal negligence, the killing is involuntary manslaughter.
Criminal negligence requires a greater deviation from the “reasonable person”
standard than is required for civil liability.
2 “Unlawful Act” Manslaughter
A killing caused by an unlawful act is involuntary manslaughter.
2 subcategories of such acts:
a. Misdemeanor Manslaughter Rule
a killing in the course of the commission of a misdemeanor is
manslaughter although most courts would required either that the
misdemeanor be malum in se (an inherently wrongful act) or if
malum prohibitum, that the death be the foreseeable or natural
consequence of the unlawful conduct.
b. Felonies Not Included in Felony Murder
if the killing was caused during the commission of a felony but
does not qualify as a felony murder case, the killing will be
involuntary manslaughter.
3. Statutory Modification of Common Law Classification
Modern statutes often divide murder into degrees. Under such schemes, all
murders are 2nd degree murders unless the prosecution proves any of the
following, which would make the murder 1st degree:
a. Deliberate and Premeditated Killing
“Deliberate” means that the defendant made the decision to kill in a cool
and dispassionate manner.
“Premeditated” means that the defendant actually reflected on the idea of
the killing, if only for a very brief period.
 b. 1st Degree Felony Murder
A number of statutes list specific felonies nad provide that if a felony
murder is committed during the perpetration of an enumerated feony, the
killing is a 1st degree murder. The prosecution need not show that the
killing was either deliberate or premeditated. The felonies most
commonly listed include arson, robbery, burglary, rape, and kidnapping.
Under these statues, other felony murders are 2nd degree murder rather
than involuntary manslaughter.
c. Others
Some statutes make killings performed in certain ways 1st degree murder.
Thus, killing by lying in wait, poison, or torture may be 1st degree murder.
4. FELONY MURDER common law
As the definition of malice aforethought above makes clear, a killing- even an
accidental one- committed during the course of a felony is murder. Malice is
implied from the intent to commit the underlying felony.
a. Felonies Included
Most courts limit the felony murder doctrine to felonies that are
inherently dangerous.
b. Scope of the Doctrine
When the felony murder doctrine is combined with conspiracy law,
the scope of liability becomes very broad. If, in the course of a
conspiracy to commit a felony, a death is caused, all members of
the conspiracy are liable for murder if the death was caused in
furtherance of the conspiracy and was a foreseeable consequence
of the conspiracy.
c. Limitations on Liability
there are some limitations on liability under the broad felony murder rule:
1) Guilty of Underlying Felony
The defendant must be guilty of the underlying felony. If he has a
defense to the felony, he also has a defense to the felony murder.
2) Felony must be Independent of Killing
The felony murder rule can be applied only where the underlying
felony is independent of the killing. Thus, a felony such as
manslaughter or aggravated battery will not qualify as the
underlying felony fro purpose of felony murder liability.
3) Foreseeability of Death
The majority rule is that death must have been a foreseeable result
of the commission of the felony. However, it is important to note
that courts have been willing to find most deaths foreseeable.
A minority of courts do not apply a Foreseeability requirement,
requiring only that the felony be malum in se.
Ex. A intentionally sets fire to a dwelling. B, a firefighter,
dies in an effort to extinguish the blaze. C, the owner of
the dwelling dies of a heart attack while watching his
largest possession being destroyed. A is guilty of the
felony murder of D as the death of a firefighter is a
 foreseeable consequence of setting a fire. Not guilty for C
as the heart attack was unforeseeable.
4) During the Commission of a Felony- Termination of Felony
The death must have been “caused during” the commission or
attempted commission of the felony, but the fact that the felony
was technically completed before death was caused does not
prevent the killing from being felony murder. Deaths caused while
fleeing from the crime are felony murder. But once the felon has
reached a place of “temporary safety”, the impact of the felony
murder rule causes and deaths subsequently caused are not felony
murder.
5. Causation
a. General Requirement- Must be Cause-in-fact and Proximate Cause
When a crime is defined to require not merely conduct but also a specified result
of that conduct, the defendant’s conduct must be both the cause-in-fact and the
proximate cause of the specified result.
1) Cause-in-Fact
The defendant’s conduct must be the cause-in-fact of the result; i.e. the
result would not have occurred “but for” the defendant’s conduct.
2) Common Law Requirement- “Year and a day” Rule
The death of the victim must occur within one year and one day from the
infliction of the injury or wound. If it does not occur within this period of
time, there can be no prosecution for homicide, even if it can be shown
that “but for” the defendant’s action, the victim would not have died as
and when he did. The rule has been sharply criticized by the S.C. as
outdated and most states have abolished the rule.
3) “Proximate Cause”
Problems of proximate causation arise only when the victim’s death
occurs because of the defendant’s acts, but in a manner not intended or
anticipated by the defendant. The question in such cases is whether the
difference in the way death was intended or anticipated and the way in
which it actually occurred breaks the chain of “proximate cause”
causation.
a. All “Natural and Probably” Result are Proximately Caused
general rule- defendant responsible for all results that occur as a
“natural and probable” consequence of his conduct, even if he did
not anticipate the precise manner in which they would occur. All
such results are “proximately caused” by the defendant’s act. This
chain of proximate causation is broken only by the intervention of
a “superseding factor.”
b. Rules of Causation
1) Hastening Inevitable Result
An act that hastens an inevitable result is nevertheless a legal cause of that
result.
Ex. A terminates the life support system of B, resulting in B’s death. D
had only 24 hrs to live. A can still be liable for B’s death.
 2) Simultaneous Acts
Simultaneous acts by 2 or more persons may be considered independently
sufficient causes of a single result.
3) Preexisting Condition
A victim’s preexisting condition that makes him more susceptible to death
does not break the chain of causation; i.e. the defendant “takes the victim
as he finds him.”
Ex. A, with malice aforethought, shoots B in the leg. B bleeds to death
before he can receive medical attention because he is a hemophiliac. A is
liable for murder despite the fact that a person without hemophilia would
not have died from the shooting.
c. Intervening Acts
General rule, an intervening act will shield the defendant from liability if the act is
a mere coincidence or is outside the foreseeable sphere of risk created by the
defendant’s act.
Ex. 1) Acts of Nature: A is driving negligently. To avoid A’s swerving
car, B takes an unaccustomed route home. B’s car is struck by lightning
and B dies. A cannot be charged with manslaughter b/c B’s death was
mere coincidence.
2) Acts by a 3rd Party: A, intending to kill B, merely wounds him. B
receives negligent medical treatment at a nearby hospital. B dies. A can
be held liable for B’s death b/c negligent care remains a foreseeable risk.
A contrary result would follow if B died due to gross negligence or
intentional mistreatment.

How to Approach a Homicide situation:

a. Did the defendant have any of the states of mind sufficient to constitute malice aforethought?

b. If the answer is yes- is there proof of anything that will, under any applicable statute, raise the
homicide to 1st degree murder?

c. If the answer to A is YES- is there evidence to reduce the killing to voluntary manslaughter
i.e. adequate provocation?

d. If the answer to A is NO- is there a sufficient basis for holding the crime to be involuntary
manslaughter, i.e. criminal negligence or misdemeanor manslaughter?

e. Is there adequate causation between the defendant’s acts and the victim’s death?
Did the victim did within a 1 and a day?
Were the defendant’s acts the factual cause of death?
Is there anything to break the chain of proximate causation between the defendant’s act and the
victim’s death?

The MODEL PENAL CODE AND HOMICIDE

 A person is guilty of criminal homicide under the MPC is she unjustifiably and
inexcusably takes the life of another human being purposely, knowingly, recklessly, or
negligently.
The Code recognizes 3 forms of criminal homicide:
1) murder
2) manslaughter
3) negligent homicide
A. MPC Murder
A criminal homicide constitutes murder when the actor unjustifiably, inexcusably, and in
the absence of a mitigating circumstance, kills another:
1) purposefully or knowingly
2) recklessly, under circumstances manifesting extreme indifference to the value of
human life.
Thus in common law terms- a homicide is murder if the actor intentionally takes a life or acts
with extreme recklessness (depraved heart murder).
1. No Degrees under the MPC
However, the offense of murder is graded as a felony of the 1st degree, which
means that the offense carries a minimum sentence of 1-10 years imprisonment-
max sentence death/ life imprisonment.
B. MPC’s Approach to Felony Murder
Extreme recklessness (and, thus, murder) is non-conclusively presumed if the homicide
occurs while the actor is engaged in, or is an accomplice in, the commission or attempted
commission of, or flight from, one of the dangerous felonies specified in the statute.
Ex. if D unintentionally kills V during the commission of a robbery, the jury
should be instructed that it may but need not infer extreme recklessness from
commission of the crime. If the felony was not committed in a manner that
manifested an extreme indifference to the value of human life, the felon is not
guilty of murder for the resulting homicide.
C. MPC Manslaughter
A person is guilty of manslaughter if she:
1) recklessly kills another or
2) kills another person under circumstances that would ordinarily constitute murder, but
which homicide is committed as the result of “extreme mental or emotional disturbance”
for which there is a “reasonable explanation or excuse.”
Manslaughter felony of the 2nd degree with a min punishment of imprisonment 1-
3 years and a max sentence of 10 years.
D. MPC Reckless Homicide (Manslaughter)
A person who kills another recklessly is guilty of manslaughter.
(A homicide committed recklessly may also constitute murder un the MPC.)
Difference between two offenses that in the case of murder, the recklessness must
manifest extreme indifference to the value of human life.

Reckless manslaughter is a necessarily included lesser offense of reckless murder.

VERY different from Common law- liability for manslaughter under MPC cannot be
founded on criminal negligence. The drafters of the MPC believed that no person should
 be convicted of an offense as serious as manslaughter in the absence of subject fault, e.g.,
CONSCIOUS disregard of a substantial and unjustifiable risk.
E. MPC Extreme Mental or Emotional Disturbance (Manslaughter)
A person who would be guilty of murder because she purposely or knowingly took a
human life, or because she killed a person recklessly under circumstances manifesting an
extreme indifference to the value of human life, is guilty of the lesser offense or
manslaughter if she killed the victim while suffering from an “extreme mental or
emotional disturbance” EMED for which there is reasonable explanation of excuse.

The reasonableness or excuse regarding the EMED is determined from the viewpoint of a
person in the actor’s situation under the circumstances as he believes them to be.
EMED incorporates sudden heat of passion and partial responsibility/ diminished capacity from
the common law.
EMED- it is enough for the D to experience intense feelings, sufficient to cause loss of
self-control, at the time of the homicide.

The defense is NOT based on the ground that there is a reasonable explanation or excuse
for the homicide, but rather that there is a reasonable explanation or excuse for the
EMED that caused the actor to kill.

1. Comparison of MPC to Common Law Heat of Passion

The EMED manslaughter provision is much broader than the common law
provocation defense.
st
1 - a specific provocative act is not required to trigger the EMED defense. All that must be
proven is that the homicide occurred as the result of an EMED for which there is a reasonable
explanation of excuse.
Ex. if a psychiatrist testifies that D killed V, his brother, b/c of EMED, brought on by a
combination of factors, including child custody problems, the inability to keep his new
home and overwhelming fear of brother, a jury instruction on manslaughter is warranted
although V did nothing to provoke the incident.
nd
2 - the provocation does not have to be brought on by the decedent
The person may successfully claim the defense if she simply believes, although
incorrectly, that the decedent was responsible for the affront, or if there was a
provocation and the defendant strikes out in a blinding rage and kills an innocent
bystander.
3rd- even if the decedent provoked the incident, it need not fall within any fixed category of
provocations.
4th- WORDS ALONE CAN warrant a manslaughter instruction.
5th- no rigid cooling off period. The suddenness requirement of the common law is absent here.

F. Negligent Homicide
A criminally negligent homicide- involuntary manslaughter at common law- constitutes
the lesser offense of negligent homicide under the MPC. The offense is graded as a felony of the
3rd degree, which carries a min sentence of 1-2 years incarceration, and a max sentence of 5
years.
VIII. SEX OFFENSES
A. Rape
Rape, a felony, is the unlawful carnal knowledge of a woman by a man, not her husband, without
her effective consent.
1. Penetration Sufficient
Rape requires only the penetration of the female sex organ by the male sex organ.
Emission is not necessary to complete the crime.
2. Absence of Marital Relationship
At common law, the woman must not have been married to the man who
committed the act. Most states have dropped this requirement where the parties
are estranged or separated, or abolished it entirely.
3. Lack of Effective Consent
The intercourse must be without the victim’s effective consent. Consent, even if
given, may be ineffective in several situations.
a. Intercourse Accomplished by Force
If the intercourse is accomplished by actual force, no question concerning
consent is raised.
b. Intercourse Accomplished by Threats
If intercourse is accomplished by placing the victim in feat of great and
immediate bodily harm, it constitutes rape. Any consent obtained by such
threats is ineffective. The failure of the victim to “resist to the utmost”
does not prevent the intercourse from being rape if resistance is prevented
by such threats.
c. Woman Incapable of Consenting
If the victim is incapable of consenting, the intercourse is rape. Inability
to consent may be caused by unconsciousness, by the effect of drugs or
intoxicating substances, or by the victim’s mental condition. If the victim
is so insane or retarded as to be incapable of giving consent, intercourse
with her constitutes rape.
d. Consent Obtained by Fraud
Only in limited circumstances will intercourse with consent obtained by
fraud constitute rape.
1) Fraud as to Whether Act Constitutes Sexual Intercourse
If the victim is fraudulently caused to believe that the act is not sexual
intercourse, the act of intercourse constitutes rape.
B. STATUTORY RAPE
1. Victim Below Age of Consent
Statutory rape is the crime of carnal knowledge of a female under the age of
consent. Even if the female willingly participated, the offense is nevertheless
committed because consent is irrelevant. The age of consent varies from state to
state, generally 16 to 18.
2. Mistake as to Age
Reasonable mistake as the victim’s age does not prevent liability for statutory
rape as it is a strict liability crime.
IX. PROPERTY OFFENSES
No difference for intents for larceny, embezzlement, and false pretenses.

Activity Method Intent

Larceny Taking and Without consent With intent to
asportation of or with consent steal
property fromteh obtained by fraud
possession of
another person
Embezzlement Conversion of Use of property With intent to
property held in a way defraud
pursuant to a inconsistence
trust agreement with terms of
trust

A. LARCENY
Larceny was the basic common law property offense
i. a taking
ii. and carrying away
iii. of tangible property
iv. of another
v. by trespass
vi. with intent to permanently (or for unreasonable time) deprive the person of his interest
in the property.

1. Larceny can be committed only by the acquisition of personal property capable of

being possessed and of some value.
2. Property “of Another”
Larceny is a crime against possession. Therefore, all that is necessary is that the property
be taken from someone who has a possessory interest superior to that of the defendant.

B. ROBBERY
Robbery, a felony in all jurisdictions
- a taking
- of personal property of another
- form the other’s person or presence
- by force or intimidation
- with the intent to permanently deprive him of it.
Thus robbery is basically an aggravated form of larceny in which the taking is accomplished by
force or threats of force.
1. Force or Threats Necessary
If force is used, it obviously must be sufficient to overcome the victim’s
resistance. If threats are used, they must be threats of immediate death or serious
physical injury to the victim, a member of her family, a relative, or a person in her
presence at the time. A threat to do damage to property will not suffice, with the
exception of a threat to destroy the victim’s dwelling house.
 2. Property Must be taken from Person or Presence of Victim
The property must be taken from some location reasonably close to the victim but
it need not be taken from her person. Property is in the victim’s presence if it is
her vicinity. Property in other rooms of the house in which the victim is located is
in her presence.
3. Force or Threats Must be Used to Obtain Property or Immediately Retain It
The force or threats must be used to either to gain possession of the property or to
retain possession immediately after such possession has been accomplished.
4. Aggravated Robbery
Statutes often create a form of aggravated robbery, usually defined as robbery
accomplished with a deadly weapon.

X. OFFENSES AGAINST THE HABITATION

A. BURGLARY
Elements:
i. a breaking;
ii. and entry;
iii. of the dwelling;
iv. of another;
v. at nighttime;
vi. with the intent of committing a felony therein.

1. Breaking Required
a. Actual Breaking- Minimal Force Sufficient
Actual breaking requires some use of force to gain entry, but minimal
force is sufficient; opening a closed but unlocked door constitutes a
breaking. If force is used to enlarge an opening so that entry can be made,
the traditional rule was that this did not constitute a breaking. Under the
better view, a breaking has occurred because force was used to gain entry.
b. Constructive Breaking
Constructive breaking consists of gaining entry by means of fraud, threat,
or intimidation by the use of the chimney.
c. Requirement of Trespass- Consent to Enter
A breaking requires a trespass, so that if the defendant had the consent of
the resident to enter, his use of force to gain entry is not a breaking. The
existence of consent to enter during limited period, however, will not
prevent entry by force at other times from being a breaking. Moreover, if
the consent was procured by fraud or threats this is constructive breaking.
2. Required Intent- Intent to Commit a Felony at Time of Entry
The defendant must have intended to commit a felony. It is not necessary that this
be carried out. It is, however, essential that the intent exist at the time of entry; if
the intent is formed after entry is completed, the burglary is not committed.
3. Modern Statutory Changes
Modern statutes have modified the common law definition of burglary in a variety
of ways that differ among jurisdictions.