1.

Reasons for Punishment

a. Deterrence
i. Keep others from performing the behavior
ii. Let public know about severity of offense
b. Protect the rest of society
c. Show collective disapproval
d. Retribution/Compensation
e. Practical necessity – punishment is inseparable from the justification of threats of punishment
f. Incapacitation – keep them away so they can't commit more crimes
g. Rehabilitation
2. Theories of Punishment
a. Retributive
i. Punishment is justified because people who choose to do wrong deserve it.
ii. Its restorative justice and the dominant theory of punishment.
iii. Retributivists look back at past acts; restricts punishment to those who committed a willing
choice to commit harm – those who are mentally ill would not deserve punishment
iv. Theorists:
1. Moore – lex talionis. Moral deserts of an offender are a sufficient reason to punish
him. It’s not an application of a general principle of justice. Equals should be
treated equally and unequals unequally.
2. Kant: Only the government should be able to punish. Judicial punishment (poena
forensic) is different from poena naturalis where crime punishes itself. But
punishment can only be imposed on someone who commits a crime. Must be first
found guilty and punishable. Failure of justice to keep someone guilty alive –
contrary to just deserts. Even if society would benefit from your life, you need to get
what you deserve
3. Morris: We have a right to punish that is derives from a human right to be treated as
a person. It is a natural inalienable and absolute right; the denial of the right leads
to the denial of all moral rights and duties. If a person fails to exercise self restraint,
he renounces a burden others have voluntarily given up.
b. Utilitarian
i. Bentham: Principle of utility – all laws should augment the total happiness of the
community. Punishment shouldn’t be inflicted if it’s groundless, can’t prevent mischief, is
unprofitable, or needless.
ii. We should only punish criminals if some good will come out of the act because punishment
in itself is evil.
iii. Deterrence
1. Specific - D can decide not to commit future crimes for fear of punishment. This
presupposes a rational person; someone could have a chemical imbalance and not
know what they're doing is wrong.
2. General – other persons, contemplating crime and learning of the punishment, will
choose not to do it. If you make an example of someone, it will cause deterrence, but
this presupposes a rational person.
3. They’re not soft on crime – they’d approve a very harsh punishment for a small
offense if it’s committed by someone believed to re-offend in the future.
4. Requires that the D hear the threat accurately. Don't want D to be under deterred or
over-deterred
 5. Pretrial diversion, plea bargaining, early release on parole, etc – undercut the
deterrent impact of the threatened punishment.
iv. Incapacitation
1. People who have rejected social norms and demonstrated their willingness to
continue to do so in the future must be prevented from reoffending
2. Punish for lengthy period of time every person committing the same crime equally
OR
3. Assume that they can accurately ID those who are most likely to reoffend and
impose on them lengthy period of incarceration.
a. Parole boards decide if people have learned their lesson and still need
incapacitation
4. Imprisonment puts convicted criminals out of circulation; death is even better.
Could parole an offender for a lesser risk management solution, but this
presupposes rehabilitation and a society willing to lock people up instead of killing
them
v. Rehabilitation
1. Punishment could reform a criminal so his wish to commit crimes will be less and he
can be a productive member of society.
2. Offenders can be changed into non-offenders if given proper treatment.
3. Each offender gets a different sentence depending on how well he had been
rehabilitated or how long it would take to do so
3. Sentencing
a. People v. Du
i. Facts: D owned a liquor store in a neighborhood run by the Cripps; observed a 15 year old
girl putting orange juice in her book back; confronter her, got punched by girl; D grabbed a
gun she didn’t know had been alters and accidently shot the girl in the head. Jury found her
guilty of voluntary manslaughter (they rejected her self-defense argument).
ii. Parole officer concluded she would be unlikely to repeat the crime if she was allowed to
remain free (deterrence not necessary)
iii. Judge put her on probation
iv. Reasons for Sentencing:
1. Protect society
2. Punish the D
3. Encourage the D to lead a law abiding life
4. To deter others
5. To isolate the D so she can’t commit any other crimes
6. Secure restitution
7. Seek uniformity in sentencing.
v. Judge looked at these factors and found that she wouldn’t do any of them, so she suspended
the sentence and put Du on probation.
4. Penal Theories in Action – How much and what Punishment should be imposed?
a. Queen v. Dudley and Stephens
i. Issue: Can people murder and engage in cannibalism if it’s necessary for their survival.
ii. Facts: four men marooned on a ship, kill the weakest without his consent, it kept them alive.
iii. Rules: Criminals don’t testify because the burden in on the state to produce the evidence
against them beyond a reasonable doubt (requires moral certainty).
iv. Jury Nullification – Jury has the power to find a person innocent even if the prosecution
proved their case.
 b. Shaming
i. US v. Gementrera
1. Facts: D stole letters and pled guilty to mail theft. Judge modified sentence to make
him visit the post office to see the effects of mail theft, write letters of apology,
lecture at schools, and hold a sign up for 1 day.
2. D argues the sandwich board violates the sentencing reform act; causes him to go
through undue sham e and humiliation, believes its unconstitutional under the 8 th
amendment
3. Court expressed concern that he didn’t understand the gravity of his offense;
shaming will have a rehabilitative effect on him; better than imprisonment and will
have a deterrent effect.
4. Appeals – held up sentence – If it was a stand-alone condition only intended to
humiliate, wouldn’t work , but it was coupled with rehabilitative gestures, so it’s ok
c. Plea-Bargaining
i. Utilitarian – state has most of the power to offer a bargain
ii. Retributive – Inconsistent with retribution because they’ e not getting just deserts; bargain
away sentences for the greater good
d. Pardoning
i. Utilitarian – if you can show he doesn’t deserve his punishment and is unlikely to repeat its
ok; in that case, punishment would be more detrimental to society than a pardon
ii. Retributive - made a determination as to guilty or time already served; punishment didn’t
fit the crime, but Kant would hate it because they’re not getting their just deserts.
e. Immunity
i. Utilitarian – greatest good to society is to put the worst person behind bars; not punishing
him for his testimony is the greater benefit
ii. Retributive – again, not getting his just deserts
f. Refusing to Negotiate with Terrorists
i. Utilitarian – greater good is to discourage terrorists activity
ii. Retributive – they won’t get their just deserts if you let them get away with their crimes;
negotiating implies that each side sacrifices something to get something else
g. Recidivist Statutes
i. Utilitarian – usually allows for more extreme punishment to cause more deterrence; these
people can’t be rehabilitated, so it’s ok
ii. Retributive – the more someone does something, the more punishment they deserve; can’t
duck the punishment after the third crime. Habitual offenders deserve a more stringent
policy for deterrence and punishment
5. Proportionality – Does the Constitution Require that Punishment be Proportional to the Crime?
a. Retributive – they would say yes.
b. Utilitarian – no, it just has to deter or rehabilitate
c. Proportionality in Rape Cases: Coker v. Georgia
i. Proportionality – 8th amendments says no cruel or unusual punishment. Nothing in there
says anything about proportionality.
ii. Facts: D breaks out of prison; has two guilty sentences for rape; rapes another woman and
threatens to kill her; D found guilty and sentences to death
iii. Issue: Is death a proportionate sentence for the rape of an adult woman?
iv. Holdings:
 1. Liberal Jack-ass Judges – grossly out of proportion to the severity of the crime; rape
of an adult woman is excessive for death penalty; there is no serious injury or death
of another person.
a. Retributive – can’t be executed for rape, no matter how severe. If it’s eye for
an eye, you’re not killing someone by raping them, so you can’t technically
take a life for rape.
2. Brennan, Marshall – don’t believe in death penalty at all
3. Powell – Rape is not a minor crime, death shouldn’t be completely outlawed for
rape.
4. Burger & Rehnquist – Rape is not a minor crime; court doesn’t have the license to
take away the legislative authority to sentence people to death if the state wants to
convict them of it. His danger to the community is clear – death penalty is needed to
stop him
a. Retributive AND utilitarian approach (deterrence)
v. Rule: Death penalty is excessive for the rape of an adult woman, but the door is open to
child rape
d. Recidivist Statutes and Proportionality: Ewing v. California
i. Issue: Under the CA 3-Strikes law, is a 25-life sentence proportional punishment for a
recidivist found guilty of shoplifting if he has a long prior criminal record?
ii. Rule: Yes, 25-life for felony grand theft is proportionate, does not violate the 8 th amendment
iii. Facts: Ewing has a LONG rap sheet. He had a long history of felony recidivism.
iv. Issue: Are we punishing him twice? Double jeopardy?
v. Ewing was not capital murder, it was
vi. 8th amendment – proportionality between crime and sentence; sentence cannot be grossly
disproportionate to the crime.
vii. Four principles of proportionality
1. Primacy of the legislature
2. Variety of legitimate pentalogical schemes
3. Nature of our federal system
4. Requirement that proportionality be guided by objective factors that inform the 8 th
amendment.

CRIMINAL STAUTES – Limits on the Scope of Criminal Statutes:

Guiding Principles of Statutory Interpretation –
 the statute as interpreted should not proscribe otherwise legal not proscribe otherwise legal conduct
(OVERBREADTH)
 statutes presumed constitutional statutes and judicial preference against striking them down, and
 If multiple interpretations are available, argue that the rule of lenity suggests giving defendant the benefit
of the most favorable

Legality Principle - Nulla poena sine lege – no crime without preexistent law.
1. Common Law Crimes
a. Strengths
i. Ensure that criminal law is always available to punish harmful conduct even if the
legislature failed to anticipate its occurrence by enacting an applicable criminal statute.
ii. Provides flexibility, so the law can adjust to new and unanticipated situations.
b. Weaknesses
 i. An individual could not know beforehand if her contemplated actions were lawful or
criminal
ii. People will avoid engaging in lawful conduct because they don't want to engage in
potentially criminal conduct
iii. Limits on governmental authority are unclear – law must draw a clear boundary between
permissible and impermissible behavior or the government will have the authority to
incarcerate individuals it considers its enemies when they were actually innocent
iv. Shouldn’t have 9 judges creating a crime instead of an elected legislature
v. Sets a bad precedent
c. There is an overall preference for criminal statutes over common law crimes.
d. Common Law Creation of Crimes: Commonwealth v. Mochan (1955)
i. Facts: Mochan was charged with intending to debauch and corrupt and harass a woman he
never met because he called her house and suggested sodomy with obscene, lewd language.
ii. Issue: Can the courts find a person guilty under the common law for something that was
never declared a crime in the Commonwealth by the legislature when there’s a common law
misdemeanor on the books for indecency?
iii. Rule: yes, doesn’t matter that there isn’t a precedent, common law is sufficiently broad and
D’s acts injuriously affected public morality.
iv. Class - But people need to be put on notice. Dissent says you can’t declare something a
crime if it was never known to be a crime; that’s the legislature’s job.
e. Today – a D cannot be convicted of a crime unless the legislature has enacted in advance a
statutory definition of the offense.
f. Utilitarian – before deterrence can be effective, an individual must be able to know what conduct is
forbidden and the consequences of breaking the law
g. Retributive – purpose of punishment is to blame those who choose to do wrong; unless they have
notice of what is wrong, they can't chose to commit a wrongful act.
2. Ex Post Facto – Criminal Law is not Retroactive
a. Legislature cannot enact statutes that criminalize acts that were innocent when done or that
increase the severity of the crime or the punishment after the fact.
b. Keeler v. Superior Court (CA)
i. Facts: D kicked his ex-wife’s baby and killed it
ii. Rule: It would violate due process to interpret the phrase "human being" to include a viable
fetus, because under the applicable law (after interpreting the legislative intent); he had
only committed an assault. Deciding after the fact that his crime would constitute murder
would retroactively increase the severity of the Ds crime and penalty.
iii. Dissent: viability of the baby is important, and they valued human life enough to make
hurting the fetus a “great misprision”
iv. Post Keeler – legislature mad it a crime to kill a fetus.
3. Rule of Lenity
a. Strict Construction – judicial resolution of residual uncertainty in the meaning of penal statues be
biased in favor of the accused.
b. MPC: did not adopt the rule of lenity – requires the criminal statute be construed according to the
fair import of their terms.
i. If the language is ambiguous, it directs courts to construe statutory language to further both
the general purposes of the criminal law and the specific purposes of the statute under
consideration.
c. Only used as a tiebreaker, when a statute is unconstitutional and there is risk of arbitrary
enforcement
4. Void for Vagueness
a. Definition
i. Laws that are so vague that ordinary people could not reasonably determine their meaning
and application from the language of the statute, or which confer excessive discretion on
law enforcement authorities to arrest or prosecute, or on judges or juries to determine what
conduct is prohibited.
b. Vague statutes are unconstitutional because:
i. We assume a man is free to steer between lawful and unlawful conduct
ii. Insist laws give the person of ordinary intelligence a reasonable opportunity to know what
is prohibited.
iii. Uncertain meanings make people steer far wider of the unlawful zone.
iv. Must ensure that criminal statutes provide fair notice of what is the criminal conduct
v. Prevents police from arbitrarily choosing which person they will arrest.
vi. Ensures a consistent and equal application of criminal law.
c. City of Chicago v. Morales (Vagueness)
i. Issue: Does an ordinance against gang members loitering in a public place violate the Due
Process clause of the 14th amendment?
ii. Facts: City wants to prevent criminal street gang activity that’s responsible for the rising
crime and murder rate; so they set up a statute with four requirements
1. Officer must reasonably believe one of the people present in a public place was a
gang member
2. Persons much be loitering without any apparent purpose
3. Officer must then order all of them to leave
4. If a person disobeys, whether a gang member or not, they’re guilty of violating the
ordinance.
iii. Majority –
1. this statute is vague because it fails to provide notice, criminalizing loitering in an
overly vague way, because you don’t know you’re breaking the law until you’re
actually told to disperse, criminalizing legal loitering, and has arbitrary enforcement
without minimal guidelines
iv. Concurring
1. They need to change the language to include a harmful purpose, like selling drugs,
etc an construe the term “loiter” more narrowly
v. Dissent (Scalia)
1. Loitering was not made unlawful, failure to disperse when gang members were told
to by an officer was made illegal.
2. People found this to be a minor limitation on their freedoms, work the price for
liberation of their streets
d. Over breadth – If the statute could catch innocent conduct, it’s overbroad (Morales)
i. In Re Banks
1. Issue: Is peeping tom statute unconstitutional for over breadth?
2. P – argues its unconstitutional because men of common intelligence must guess at
its meaning an differ as to its application; could be violating it without knowing
a. Requirements for overbroad
i. If it prohibits legitimate conduct
ii. Indefinite scope
iii. Reasonable men could differ on its application
iv. Criminal statutes must be strictly construed
 1. If it’s ambiguous or unclear, judicial construction would be
used to ascertain the legislative will, using intent, how it
applies in the past, common law routes, purpose of statutes
as a whole, prior language, etc.
2. Criminal statute must be sufficiently definite to give notice of
the required conduct to one who would avoid its penalties
b. A common-law statute challenged for vagueness should not be tested
for unconstitutionality but should be judged in light of its common law
meaning, statutory history and prior judicial interpretation.
3. Rule: Common law statutes – if its susceptible to two interpretations, one
unconstitutional and one constitutional, use the constitutional one
4. In this case – it’s illegal to “peep secretly” so the inclusion of the work “secret” keeps
the statute from being vague, because it gives an individual fair notice of the conduct
prohibited – secret peeping.
e. Constitutional rights are not affected
5. Separation of Powers
a. Who provides better protection to the individual, the judge or the legislature? What about the jury?
b. Jury
i. Couldn’t understand expertise; crimes would be IDed on a case-by-case basis
ii. No consistency
iii. BUT jury would give specific examples that aren’t vague and lend a human perspective.
Juries are more representative of a community than a legislature.

Actus Reus

 Crime has two parts – Actus Reus and Mens Reus

Actus Reus/ Guilty Act Requirement

1. MPC – act is defined as a bodily movement whether voluntary or involuntary. Provides that a person is not
guilty of a crime under the MPC unless his liability is based on conduct that includes a voluntary ct or the
omission to perform an act of which he is physically capable.
2. Requirement of an Actus Reus
a. Common Law
i. Act is a bodily movement that can be voluntarily or involuntarily performed
b. Must be voluntary
i. One is responsible only for those consequences that are caused by his actions, and not for
those things in which his body but not his acting self is causally implicit.
ii. “a willed act” or “acting on your own volition”
c. Involuntary Acts – the individual has no conscious control over these acts
i. MPC – involuntary acts
1. Reflex or convulsion
2. Bodily movement during unconscious sleep (ex – Utter)
3. Conduct during hypnosis
4. Bodily movement otherwise not a product of the effort or determination of the
actor, either conscious or habitual
ii. Martin v. State
 1. Facts: Martin is convicted of being drunk on the highway; but cops arrested him at
home and then took him on the highway where he committed the act (drunkenly
using loud and profane language)
2. Holding: Voluntary appearance is presupposed because an accusation of
drunkenness in a designated place cannot be established when the proof is that
while drunk, an officer involuntarily and forcibly carried him to that place.
3. A person is not guilty of a crime unless it includes a voluntary act.
4. If it’s involuntary and they can’t help but break the law or there’s no notice, there’s
no conviction.
iii. People v. Decina
1. Facts: Guy has epileptic seizure while driving; charged with operating a vehicle in a
reckless manner; MPC says it’s involuntary, but the court denied D’s motion to
throw out the indictment.
2. Reconcile this with Martin – Operating a vehicle vs. being forced into public. More
voluntary acts involved with driving a vehicle
3. If there is one voluntary act in the Ds course of action, he may be criminally
responsible. Getting into the car when you know you have epileptic fits is
voluntary.
iv. State v. Utter
1. Facts: D killed his son while very drunk; tried to claim it was involuntary because he
acted violently instinctually because of war training.
2. Issue: Whether it was error for the trial court to instruct the jury to disregard the
evidence on conditioned response.
a. D argued that any of the acts he committed did not involve mental processes
but were physical reactions to external stimuli.
b. Without the consent of will, human actions cannot be considered
culpable.
3. Holding: When the state of unconsciousness is voluntarily produced through
the use of drugs or alcohol, then the state of unconsciousness is not a complete
defense.
4. Rules:
a. Automatism can be asserted as a defense to crime.
b. Mens Rea – actors’ state of mind regarding the social harm of the offense.
c. Voluntariness – refers to the act that caused the social harm.
d. Big Rule: Unconsciousness is a defense unless it’s voluntarily brought
on.
d. Strict Liability –still need a voluntary act.
3. MPC – three components/material elements
a. Conduct – physical behavior of the D
i. Some crimes are only conduct crimes. Just doing it is bad; you don't need a result
b. Circumstance – objective fact or condition that exists in the real world when the D engages in
conduct.
i. Many statutes include an attendant circumstance (ex – burglary at night)
ii. Prosecutor usually must show the existence of these circumstances.
c. Result – consequence or outcome caused by the Ds conduct.
i. Result Crimes – need to show a harmful result in order to meet the elements of the crime
ii. (Ex – homicide; you can shoot at them but unless you kill them you’re not guilty.
4. Common Law – No Duty to Act
 a. Overall Rule
i. Criminal law typically one punishes an individual for ONLY the affirmative harm they have
caused. There is usually no criminality for a failure to act; our system is based on preventing
people from harming others, not forcing them to act.
ii. Common Law – No Duty to Aid
iii. However, sometimes people have a legal duty to act. Example – everyone has to fill out an
income tax return. Failure to do so is punishable.
b. People v. Beardsley
i. Facts: Woman he was cheating on his wife with took morphine and washed it down with
beer and died. D was charged with manslaughter because the prosecutor said he had a duty
to care for her.
ii. Issue: Did D owe woman who was not his wife a duty to save her from death?
iii. Law
1. Under some circumstances the omission of a duty owed by one individual to another
that results in the death of the person they owe the duty to can be manslaughter.
2. If the D willfully or negligently fails to make a reasonable and proper effort to
rescue a person, so long as it doesn’t jeopardize his life or others, he is guilty
of manslaughter.
iv. Rule: There was no legal duty based upon moral obligation. Just because the woman
was in his house doesn’t mean he had a legal duty like a husband toward a life; in fact that’s
repugnant because she’s a loose woman.
5. Exceptions to the general rule:
a. Statutorily Imposed Duties
v. Many states require medical providers and others to report suspected child abuse
b. Status or Relationship-based Duty
vi. Beardsley Case – Court attacks the character of the victim to draw the line to reign in the
status-based duty
vii. Parents-to-Children
viii. Failing to pay taxes
c. Duty arising from Contract
ix. Nursing homes, doctors.
d. Voluntary assumption of Care and Seclusion of Helpless Persons
e. Duty to control the conduct of another
x. Business exec. May have the duty to prevent the company chauffeur from speeding.
f. Duty Based upon Creation of Risk/Peril
xi. Someone who pushes another who cannot swim into a deep lake must take reasonable
steps to rescue him.
g. Duty of a landowner
xii. Theatre owner has a duty to provide reasonable emergency exits for his customers.
h. A D cannot avoid criminal responsibility by claiming he was unaware that a legal duty to act arose
from the facts.
6. Arguments in Favor of No Duty
a. Would result in increased prosecutions.
b. Problems of Proof
c. People could get in the way
d. Line Drawing – can you arrest all the people who don’t help?
7. Arguments Against No Duty
a. May exonerate those would have morally objectionable reasons for failing to act.
 b. Imposing a duty might promote social adhesion and prevent harm.

MENS REA

1. Definition
a. Criminal Mind
i. Each element of a crime has a particular mental state associated with it
ii. Mental state is a critical aspect of the crime
iii. Can be defined narrowly or broadly.
b. Retributive
i. Although a society presumably wants to deter conduct, the mens rea requirement flows
from our societies’ commitment ot individual choice
c. Utilitarian
i. A person can’t be dettered from criminal activity if they don’t have a culpable state of mind.
2. Mental States – Common Law Three Types of Specific kinds of Mens Rea
a. Intent
i. A person who intends to commit harm is a proper subject for punishment
b. Intending the conduct vs. Intending the result
i. They may have intended to pull the trigger, but they didn't mean to kill the person.
c. Oblique Intent
i. Some courts say that even if the D didn't intend the result, but knew that if he acted, the
result was practically certain to happen if achieved his goal, he's culpable.
ii. D is as morally blameworthy as the D who actually intended to kill the person he shot.
iii. (Regina v. Cunningham)
d. General vs. Specific Intent
i. Specific
1. Intent to do a specific wrong now or in the future
a. Usually knowingly or intentionally
b. Specific additional mens rea
i. Ex – intentionally taking something with the intent to permanently
deprive the owner of possession
2. Knowledge or awareness of certain circumstances
a. Receiving stolen property – have to know it’s stolen (which is attendant
circumstances)
ii. General Intent
1. All other crimes that don’t include a specific intent. I the only requirement is
knowingly, probably general.
3. Knowledge
a. Must have knowledge of a material fact.
i. Must be aware of the fact OR
ii. Correctly believe that the fact exists.
b. Knowledge of attendant circumstances - Willful Blindness
i. MPC – knowledge of existence of a fact is an element
ii. UNLESS the actual belief is non-existent
iii. Example – anyone who knowingly transports drugs is guilty of felony
o Actus Reus – Transportation
o Mens Reus – knows it
iv. Definition: When you have the opportunity to know something but you choose specifically
to look the other way.
o Aware of a high probability of the existence of the fact in questions AND
o Deliberately fails to investigate, in order to avoid confirmation of the fact.
v. Ostrich Instruction: can’t go out of your way to avoid knowledge of criminal behavior. D
acted knowingly, if P can prove beyond a reasonable doubt, that the D deliberately closed
her eyes to what would otherwise have been obvious to her.
 o You can’t avoid responsibility for a crime by deliberately ignoring what’s
obvious. Prove ignorance of overt physical acts or purely psychological
avoidance.
4. Recklessness
a. Requires proof that a person disregarded a substantial and unjustifiable risk of which he was
aware.
5. Regina v. Cunningham
a. Actus Reus of Statute – he endangered the life of his mother-in-law when he “caused to be
administered” poison gas.
i. Act – pulling the pipe out of the wall
ii. Attendant Circumstances – cause to be administered gas
iii. Result – Endangered her Life
b. Mens Rea – Maliciously
i. Actual Intent to Do Harm/Reckless and caused the harm
ii. Wickedness is not malice; he claims he did for money
iii. But it could be reckless because he knew there was a chance the gas could get to his
mother-in-law
6. Criminal Negligence
a. Must be gross, reckless or wanton
b. Basically, only if the Ds failure to recognize the risk was really outrageous or stupid, should he be
convicted. Courts are split on whether it’s punishable.
c. Elements
i. Gravity of the harm that’s foreseeable would result from the Ds conduct
ii. The probability of such harm occurring
iii. The burden – or loss – to the D of desisting from the risky conduct
iv. As the gravity of harm increases, the more substantial the actor’s reason for taking the risk
must be.
7. Culpability vs. Elemental
a. Common Law rarely distinguish BUT
i. Culpable – intent to do any socially morally undesirable conduct or state of mind
ii. Elemental – intent to do/achieve a specific wrong now or in the future set out into the
iii. BROAD MENS REA
iv. Willful = reckless, knowledge, intentional
v. If no mens rea = strict liability
b. MPC exclusively uses elemental meaning
i. SPECIFIC MENS REA
c. Ex – Regina
i. If use culpable, you have to convict if he does an undesirable conduct
ii. If use elemental – jury has to find he did the actual conduct charged with
d. Recklessness is sufficient is there is no mens rea. (Recklessness, Knowledge, Purposely)
8. Strict Liability Offenses
a. Mens Rea is not required
b. Can be established when
i. Minor violations, like liquor law or traffic laws
ii. Statutory Rape
c. Staples
i. Facts – Police found semi-automatic weapon that had been modified to become an
automatic weapon. Under National Firearms Act, illegal to have a modified unregistered
fully automatic gun.
ii. Issue – is this a strict liability offense?
iii. Rule: There is no mention of mens rea in the statute, so when there is silence, there is
assumed to be a mens rea element unless the legislature says otherwise.
d. Arguments for
i. Protects important social interests, requires an extra level of care
 ii. Because penalties are small, there is a minimal stigma attached to it (i.e. – failing to register
your car)
iii. Great deterrence
e. Arguments against
i. Against the law to punish an accidental wrong-doer
ii. Any infraction or crime carries a stigma

Categories of Mental States MPC

Attendant Result Conduct
Circumstance
Purposely He is aware of such It is his conscious It is his conscious
circumstances, or objective to cause such objective to engage in
hopes they exist. a result. conduct of that nature.
Knowingly He is aware that such He is aware that it is He is aware that his
circumstances exist. practically certain that conduct is of that
his conduct will cause nature.
such a result.
Recklessly He consciously He consciously
disregards a disregards a
substantial risk that substantial and
the material element unjustifiable risk that
exists the material element
will result from his
conduct.
Negligently He should be aware of He should be aware of
a substantial and a substantial and
unjustifiable risk that unjustifiable risk that
the material element the material element
exists. will result from his
conduct.
a. Adopts element analysis
b. Reduces statutory mens rea culpability to four states
c. Adopts subjective liability (recklessness) as the default position
1. Definition: Elements of a crime
a. Intent/Purposely (Nature of the conduct - If they wanted to cause the result) OR
b. For attendant circumstances - if they were aware of the existences of the circumstances and
believes or hopes it exists
c. Intended to do harm/crime (result)
d. May not always have all three elements of a crime.
2. Mental States
a. Knowledge
i. For conduct/attendant circumstances – aware his conduct is of that nature of that such
circumstances exist AND
ii. If the element involves a result of his conduct, he is aware that it is practically certain his
conduct will cause such a result.
b. Recklessness
i. When he consciously disregards a substantial and unjustifiable risk that the material
element exists or will result from his conduct; it’s disregard must involve a gross deviation
from the standard of conduct that a law-abiding citizen would observe in the actor’s
situation
ii. A D MUST recognize that there is a particular risk and subjectively choose to disregard that
risk.
3. Negligence
 a. When he should be aware (material element) that a risk exists or will result from his conduct.
Should involve a gross deviation of care that a reasonable person would observe in his situation.
4. Strict Liability
a. No necessary mens rea
5. Reasons for Mens Rea
a. Don’t want to convict people for engaging in innocent conduct that accidentally results in accident.
b. If your intent is to reform them by punishment, if they don’t have the right mental state, how can
you reform them? (Utilitarian)
6. Every material element in every statute must be modified by one of ht mental culpability states

Statutory Considerations for Mens Rea

1. Differences between CL and MPC
a. CL – mens rea required for one element of an offense, but not necessarily for every single element
b. MPC –
i. elemental approach to mens rea;
ii. Each and every element of an offense will have a mens rea requirement.
iii. Strict liability is not recognized as a mental state;
iv. No mens rea is required for strict liability.
v. They’re usually called violations, not crimes, because of the lack of mens rea.
2. If the mens rea is unclear for an element – MPC 2.02(4) says that it applies to each material element unless
there's a contrary purpose plainly appearing
a. Therefore, if there's one mens rea, it goes for all elements
b. And if there is no state mens rea, it's recklessness

MISTAKE
Mistake of Fact
1. Definition: some type of social harm has been caused, but the D is unaware or mistaken about a fact
pertaining to an important element of the offense.
2. People v. Navarro
a. Facts: Navarro takes four wooden beams; claims he thought he could take them
b. Jury Instructions – Does the D have to have a good faith belief that the goods were abandoned,
even if that good faith is unreasonable?
c. Holding: Mens rea will be negated by a good faith belief, no matter how unreasonable
d. For an affirmative defense, must show evidence that this good faith belief
3. Specific Intent Crimes (ex. Burglary)
a. Reasonable or unreasonable mistake of fact can be a defense
b. Must negate the specific mens rea requirement in the definition of the offense.
4. General Intent Crimes (ex. Battery)
a. Only reasonably mistake of fact can be a defense.
b. But in both cases – the mistake must be in "good faith"
5. If the offense is a strict liability offense, mistake of fact is not a defense because it doesn't
require mens rea
a. Moral Wrong Doctrine
i. Common Law- if the conduct is immoral, the D assumes the risk of any of the
attendant circumstances they may or may not be as he believed.
1. Immorality of the crime overrides the mistake which would have defeated
the general intent.
2. Ex – man kidnaps a 14year old girl but he thought she was 18
3. Because kidnapping is morally wrong, he accepts the consequences of her age;
has the blameworthiness of statutory rape.
ii. Problems with this doctrine
1. People have different moral standards
2. There is a lack of consistency and predictability
iii. MPC – Legal Moral Wrong Doctrine
 1. Same result, replaces "moral" wrong with "Legally" wrong.
2. Can readily decide what is legal.
3. Therefore, if D is guilty of a crime, despite a reasonable mistake of fact, if he
would be guilty of a different, but less serious crime, if the situation were as he
supposed it.
6. Willful Blindness – not an acceptable defense
a. If you make yourself willfully blind to mistake a fact, that's not an acceptable defense.
b. What a reasonable person knew or should have known. Someone who ignores these relevant
facts is as morally blameworthy as someone who actually knew.

Mistake of Law
1. Common Law - General Rule: Ignorance or mistake of law is no excuse.
2. People v. Marrero
a. Facts: Even D's own misreading of the statute was no excuse and Marrero was not entitled to
mistake of law jury instruction. Relying on your interpretation or reading of the law is not an
excuse.
b. Marrero thought that he was a peace officer and could carry a gun; his mistake of the law was
not acceptable because everyone could have a misinterpretation of the law and get off for
it; therefore, ignorance or mistake of law is NO excuse.
3. Mistake of Law vs. Mistake of Fact
a. With mistake of fact, you are mistaken about the facts and circumstances surrounding the law.
b. With mistake of law, you don't necessarily know what the law is.
4. Ignorance of the Law Excuses No One
a. Mistake of Law is no Excuse
b. MPC merges mistakes of fact and law
i. Affirmative Defense
ii. Proof by preponderance required
c. Arguments in favor of allowing defense (mistake of law defense is good because)
i. Some laws are particularly prohibitive or obscure
ii. Not everyone is update on brand-new laws
iii. No mens rea.
d. Arguments Against allowing Defense
i. Could be claimed in nearly every case
e. MPC 2.04(3) and (4)
i. Will allow mistake of law in certain situations:
1. If you have reasonably relied on an official statement of law
2. If the law has not been published or made aware to the public.
5. Exceptions: where Mistake of Law will be a defense
a. MPC: Reasonable reliance (Codifies all the CL exceptions)
i. If a person relies on an official, but erroneous statement of the law OR
ii. If a statement of law is found in a statute, jducisial decision, administrative order,
or an official interpretation by a public office AND
iii. The reliance is reasonable.
b. CL: Fair notice/due process
i. Lambert Case – very rare situation (only Supreme Court case addressing it)
ii. Facts: Woman was a convicted felon, moved into LA with a statute requiring felons to
register, failed to register, convicted
iii. The statute was for a failure to do something and it was based on status as a convicted
felon (instead of on conduct she'd actually done) She didn't have notice, so mistake of
law.
c. MPC: Fair Notice
i. D is not guilty if she does not believe her conduct is illegal AND the statute defining the
offense:
1. Is not known to her
 2. Was not published or otherwise reasonably made available to her before she
violated the law
d. CL: Where knowledge is a specific element of the crime/it negates the required mens rea
(Cheek)
i. Cheek v. United States
1. Facts: Man prosecuted for tax evasion and failure to file tax returns. On appeal
he argued that he was part of a group that said income tax was illegal, so he
believed tax returns were illegal. (One of the people there was a lawyer)
2. Court held that he could have a mistake of law just instruction
e. MPC: ignorance or mistake that negates mens rea
i. Mistake of law is a defense if it negates a material element of the offense, or if the law
expressly provides for a mistake of law defense
ii.
f. Different Law mistake
i. Difference between Cheek and Marrero – Marrero was arguing under the law he was
actually prosecuted under; Cheek is arguing that he reasonably relied that the law didn't
exist.
6. MPC combines mistake of law and mistake of fact
a. Affirmative defense – Yes I did it, however, I had this external circumstance. They were justified
in doing what they did, because mistake of law/fact
b. Preponderance of the evidence.
Intoxication
1. MPC - §2.08
a. Intoxication is not a defense unless it negatives an element of the offense.
i. Ex: If recklessness is an element and D was unaware of the risk because of intoxication,
such unawareness is immaterial.
b. Intoxication Defense
i. Cannot be self-induced
ii. Must create a pathological result
1. Ex – you take Tylenol and have a strange reaction to it

CAUSATION
1. Crime = Actus Reus + Mens Rea + Causation
a. You must have a link between the act and the social harm
2. Common Law
a. D's conduct must have been both the cause in fact and the proximate cause of the harm
3. Cause in Fact – But-for causation
a. If the harm would not have occur unless the D had engaged in the conduct, there is cause in fact
b. Was the D's conduct necessary or a substantial factor for the harm to occur?
i. But for the Ds conduct, this chain of events would never have begun and the harm would not
have occurred.
ii. An omission can also satisfy the legal requirement of causation
c. Substantial Factor/Concurrent Sufficient Causation OR
i. If two Ds act with the intent to kill the victim, and either of their conduct would have been
effective in bringing about the result, they are culpable.
ii. Whether the two separate acts would each alone is sufficient to kill the victim.
d. Accelerating/Hastening Result
i. State v. Oxendine
1. Facts: Little boy dies; Girlfriend knocks him down, causes intestinal tears; Father beats
him; later the boy dies
2. Jury finds girlfriend and father guilty of manslaughter
3. Father claims it wasn't his action that killed the kid
4. Issue: But for the defendant's act, would the child have died?
5. OR But for the defendant’s act, would the child have longer to live
 6. Court: Prosecutor showed no acceleration; therefore, can't be convicted of
manslaughter because they don't know that the beating accelerated, aggravated or
caused the death.
4. Legal Cause = Proximate Cause
a. Decides whether a D is responsible for causing harm even though an intervening cause helped bring
about the harm.
i. Harm must be intended or reasonably foreseeable
1. Coincidental v. Responsive
a. Responsive Act: Occurs in reaction or response to the Ds prior wrongful conduct
b. Coincidental Act : Does not occur in response to the initial wrongdoers act
c. If it’s' a coincidence to what you did, it doesn't matter
d. But if it’s a response to what you did, then you're responsible because it's
foreseeable
2. Harm intended or Risked vs. The Manner in Which it Occurs (harm within the risk)
a. If D intended a particular harm or created a risk that a particular harm would
occur but it occurs in a manner different than intended or expected, courts will
generally find the intervening cause to be dependent, provided the specific
causal mechanism was not entirely unexpected or coincidental
b. Kibbe v. Henderson
i. Facts: Ds rob a man and leave him at the side of the road, drunk. He gets
hit by a car and dies. Prosecutor charges the robbers with his death
ii. Kibbe claims he's not the proximate cause
iii. Court: Judge should have instructed the jury about the definition of
causation.
ii. Not remote or accident
iii. (Take the victims as you find them)
1. Preexisting medical conditionals are foreseeable; if a person who has a history of heart
disease dies from fright during a robbery, you're still responsible for causing the death
because you take the victim as you find him
b. Situations
i. Intended Consequences – If the D intended a certain result by a certain means and that result
came about by those means, you still have proximate cause
ii. Apparent Safety – This intervening cause will break the causal link. It's when a dangerous force
has come to rest at a position of apparent safety.
1. Ex – husband beats his wife; woman flees, refuses to go inside, freezes to death;
husband is not liable because she could have gone into apparent safety.
iii. Human Intervention – WILL break the causal link
1. The free, deliberate choice of another human
2. The D is more likely to be relieved of criminal responsibility if there's been a free and
deliberate intervening human agent

Acts………………………………………………………………………………………………………………………………………………Harm
|
Intervening Events
1. Acts of Victim
2. Acts of Nature
3. Acts of a Third Party
c. Velazquez v. State
i. Facts: D and V drag race, V is drunk; V turns around and goes back toward starting line, loses
control, crashing, dies
ii. Issue: Whether D's reckless conduct caused the death of the victim?
iii. Holding: D's mere participation in the race was not a proximate cause of death because in effect,
the deceased killed himself by his own volitional reckless driving.
5. MPC 2.03
a. But-For Causation
 i. The D’s conduct must have caused the prohibited result.
ii. Prosecution must establish but for causation and any other specific causal requirements
imposed by the Code or the law defining the offense.
iii. NOT established if the harm would have occurred without the Ds conduct.
b. Proximate Cause
i. Transforms much of the analysis about causation into an inquiry about the Ds culpability.
ii. Whether it can still be said he caused the prohibited result with the level of culpability
required for the definition of the offense.
1. The result has to be a probable consequence of the act.
c. Other Causation, Concurrent Causation, and Transferred Intent
i. Allows legislatures to impose traditional causal element in a statute if they wish, but does not
address concurrent causation.
HOMICIDE
1. Murder
a. Common Law
1. 14th C England: The unlawful killing of another human with malice aforethought; no degrees,
rather 4 constituent states of mind:
1. Intent to kill
2. Intent to cause grievous bodily harm
3. Depraved-heart murder
4. Persons who, though not intending to kill, nevertheless acted in a way that they knew to
cause a high risk of death

2. Presumed Malice
1. Pre-20th C
a. A person is “presumed” to intend the natural and probable consequences of his
act
b. A killing committed with a deadly weapon was presumed to have been
committed with malice
2. Today
a. These doctrines are instead looked at as “permissive inferences” which the jury
may use or disregard at its discretion
3. Gradations of Murder
1. First-Degree Murder
a. Intentional and unlawful killing of a human being with malice, deliberation and
premeditation
i. Done after a period of time for prior consideration
1. Any interval of time btw forming the intent to kill and the
execution of that intent, which is of sufficient duration for the
accused to be fully conscious of what he intended, is sufficient to
support a conviction
ii. Forrest: Premeditation determined by looking at:
1. Provocation
2. Conduct
3. Threats
4. Dealing of lethal blows post-death
5. Brutality of killing
b. 1st Degree – Premeditated, Deliberate, and Willful
i. Three elements to show the requisite premeditation and deliberation
1. Planning Activity
2. Motive
3. Manner of Killing
ii. They must have thought about killing their victim
iii. Must have brooded over it for a reasonable period of time (deliberated)
iv. Then killed willfully (or inflict GBH willfully)
 v. Guthrie v. State
1. Facts: Guthrie kills his coworker; appeals because the jury
instruction equated "willful, deliberate and premeditated" with a
mere intent to kill
2. Rule: Jury should be instructed that murder in the first degree
consists of an intentional, deliberate and premeditate killing
which means that the killing is done after a periods of time for
prior consideration. The duration of that period cannot be
arbitrarily fixed, any interval of time between the forming of the
intent to kill and the execution of that intent, which is of
sufficient duration for the accused to be fully conscious of what
he intended is sufficient to support a conviction for first degree
murder.
2. Second- Degree Murder
a. If a killing is murder (committed within the broadened notion of “malice
aforethought”) and was not premeditated, it is second degree.
3. Test to Determine First-or-Second Degree:
a. Was the killing a murder (was it done with malice aforethought)?
b. If so, was it “premeditated, deliberate and willful?
c. If yes, it was first-degree; if no, second-degree.
b. Chaves Categories of Murder
1. Intent to Kill
2. Intent to Cause Great Bodily Harm
3. Depraved heart – acted with extreme recklessness
1. Berry – dog guarding weed mauls small child. No fence.
2. MPC: if it's reckless its murder.
3. Must be a high probability that the act done will result in death and it must be
done with a base antisocial motive and wanton disregard for life.
a. Unjustifiability of taking the risk
b. High probability of causing death.
4. Recklessness v. Criminal Negligence
4. Felony Murder (see below)
c. Model Penal Code
1. 210.2 MURDER
2. Abolishes degrees of murder, instead characterizing as “death eligible” all killers who cause the
death of another human being purposely, knowingly, or recklessly under circumstances
manifesting extreme indifference to the value of human life
1. Recklessness and indifference are presumed if the actor is engaged or is an accomplice
in the commission of, or an attempt to commit, or flight after committing or attempting
to commit robbery, rape, or deviate sex by force or threat of force, arson, burglary,
kidnapping or felonious escape
2. Felony Murder
a. "Any death occurring during the course of a felony is murder"
b. Transferred Intent
i. The mens rea to commit the felony serves as the intent to commit the murder. Provides a harsh
penalty/deterrent by making an unintended killing a murder.
ii. Rule equates the intent to commit the felony with premeditation and deliberation, specific mental
states that require proof of particular acts and thoughts.
c. Policy Debate
i. Against
1. Unjust. It doesn’t deter crimes because they didn’t have the initial mens rea; how do you
deter an accident?; no legitimate basis
2. Where the killing was unintended it would be far more sensible to enhance the sentence for
conduct over which the felon had control, such as the carrying of a deadly weapon, rather
than automatically elevate the killing to murder.
 ii. For
1. Punishing both the accidental and deliberate killings that result from the commission of a
felony is the strongest possible deterrent
2. Felon has the evil mind necessary for the mens rea
d. Generally: As originally understood, the felony murder doctrine applied to any death that occurred during a
felony, but this clashed with notions of causation
i. The Proximate Cause Theory
1. Courts have wrestled with whether criminal liability should ever be predicated on tort
causation concepts.
2. Foreseeability raises questions
3. The use of an objective standard in assessing criminal guilt seems undesirable
ii. The “In-Futherance” or Agency” Theory
1. Courts have required the killing to further the criminal purpose
iii. Justified v. Excused Killings
1. Must remember that an act is justified depending not on its results, but on the
circumstances under which it occurred.
iv. The Shield Cases
1. If D uses V as a shield, D is liable
e. MPC: severely limits the doctrine. Only applicable where there is:
1. Robbery
2. Rape
3. Arson
4. Burglary
5. Kidnapping
6. Felonious escape
7. Presumption hat the D was murderously reckless with regard to the possibility of death is
rebuttable by the D
f. Common Law Limitations to the Felony Murder Rule
i. Killing must be done during the felony (either while the attempt is going on or during escape)
ii. Person-endangering felonies are insufficient
1. Predicate felony must not be one involving personal injury but have a purpose other than
inflicting harm.
2. Ex – if a woman intentionally beats her child, she could not be held for the resulting
unintended death under the felony murder doctrine; this would be manslaughter.
iii. Inherently Dangerous Felony
1. Tests to determine if a felony is inherently dangerous
a. In the abstract – is there any way this felony could be carried out without
substantial risk of death? If yes, no FMR.
b. Case by Case – determine if that certain crime was inherently dangerous.
2. People v. Fuller
a. Facts: D steals tires, police chases them, high speed chase, Ds charged with murder
under felony-murder law
b. D challenges on appeal because he committed a nonviolent daylight burglary
c. Law: “All murder which is committed in the perpetration of, or attempt to
perpetrate: arson, rape, robbery, burglary, mayhem, or lewd acts with a minor, is
murder of the first degree.
d. Court upholds the murder conviction; but in dicta claims the law is irrational
because an automobile burglary is not dangerous to human life (no one was in the
van or the lot during the burglary; no deterrence)
3. People v. Howard
a. Facts - Man flees the scene of a crime and runs a red light, man dies.
b. Court: Felony can only be used for basis of conviction felonies that are inherently
dangerous and create a serious risk of death.
c. Test for what the court has to look to discover is something is inherently dangerous
i. Statutes first
 ii. Tests in the abstract
1. Is the felony dangerous by its very nature in that it cannot be
committed without creating a substantial risk that someone will be
killed?
2. There are certain felonies that are inherently dangerous, including
poisoning, kidnapping, and malicious possession of a destructive
device.
d. Dissent – Powell – Thinks they should use the case-by-case test.
e. When society has declared certain inherently dangerous conduct to be
felonious a D should not be allowed to excuse himself by saying he was
unaware of the danger to life because by declaring the conduct to be felonious,
society has warned him of the risk involved.
g. Model Penal Code
i. 210.2(b): Limits the doctrine, allowing its application only in cases involving robbery, rape, arson,
burglary, kidnapping or felonious escape
ii. Still, the Code raises only a presumption that he D was murderously reckless; it is rebuttable.
1. Once a D provides sufficient evidence to raise an issue on which there is a presumption, the
prosecution must then prove the presumed fact (mens rea) beyond a reasonable doubt.
3. Capital Murder
a. 38 States and the federal government have the death penalty.
b. Fuhrman v. Georgia
1. The state statute at the time was capricious, too discretionary, and disproportionate; banned the
death penalty in the US and GA under the legislatures changed their death penalty laws to amend
this problem.
c. Gregg v. Georgia
1. Holding: Death penalty did not violate the 8th and 14th amendments because the sentencing
guidelines and aggravating circumstances allowed the jury to control their discretion so that the
result was not discriminatory.
1. The trial process was bifurcated.
2. Serves for both deterrence and retributive social purposes
2. Rule: For the death penalty to be constitutional; cannot involve unnecessary and wanton
infliction of pain AND it must not be grossly out of proportion to the severity of the crime.
d. McKlesky v. Kemp
1. Facts: Man found guilty of murder, sentenced to death; cites the Baldus study as reason why the
new death penalty is still capricious, arbitrary and racist.
2. Rule: D doesn’t’ argue that there was discretion or discrimination in his own case, just that it
exists in the system. To allow a convicted criminal to say that his conviction couldn’t stick
because it’s based on an un-uniform jury system would dismantle the entire criminal justice
system
Manslaughter
1. Definition
a. CL: unlawful homicide without malice aforethought.
b. MPC: Criminal homicide constitutes manslaughter when it is committed recklessly or when it would
otherwise be murder but is committed under the influence of extreme mental or emotional disturbance
for which there is reasonable explanation or excuses
i. Reasonableness is determined by the point of view of the person in the actor’s situation under the
circumstances as he believes them to be
ii. No timing aspect in MPC
c. If no MPC – adequate provocation
2. Voluntary
a. Unlawful killing without malice aforethought, where the killing is done in the heat of passion as a
result of legally adequate provocation
i. Provocation:
1. Ex's of Passion
a. Illegal arrest – though you were being arrest illegally
 b. Battery, mutual combat, or aggravated assault
i. If two men started with a fist fight, but then one stabbed the other, its
manslaughter not a murder because the killing was done in a sudden
passion during a chance occasion.
c. Injury or abuse to a close relative
d. Adultery; had to find the spouse in bed with another.
2. Girouard case – Words alone do not constitute adequate provocation
a. Though some jurisdictions have allowed this
b. Insulting words v. Informational words
i. Information – you didn’t' see your spouse in bed with someone else, but they
goaded you about it

b. Cooling off Period

i. If a D has cooled off is up to the jury to decide
ii. Voluntary Manslaughter – Court have difficulty explaining the rationale of manslaughter
1. Historic Doctinres
a. Legally Adequate Provocation
i. 3 categories:
1. Battery, mutual combat, or aggravated assault
2. Adultery
3. Illegal Arrest
b. Heat of Passion and Cooling Off
i. Question of Law: the defendant must not have had enough time to cool off
2. Current Doctrines Current Doctrines (reflect some changes to historic doctrines)
a. Reasonable Man Test
i. Adequate legal provocation became anything that could cause the “reasonable
man” to act in passion
1. Some cases have held the reasonably prudent person to be in the actor’s
shoes (ex: age, gender, physical disabilities, but usually NOT
psychological characteristics)
b. Cooling Off Period
i. Question for Jury: length of cooling off period
ii. Now, some courts allow for a “rekindling” effect
c. Cumulative Provocation
i. Ex: Reasonable spouse subjected to years of abuse might “snap” in response to
what otherwise might be a “trivial” action on the part of the provoker
c. Provocation as a defense
i. Determined with reasonableness
1. Legislature is recognizing that some murders are worse than others.
2. Can't deter someone from committing murder if they're doing it in the heat of passion after
they've been provoked
3. Ask, would a reasonable man act as the D acted?
4. Look at:
a. The gravity of the provocation
5. Whether the Ds characteristic led to the loss of control?
a. Can include evidence of mental abnormality of D
b. Depression and Lack of Sleep are allowed to be considered for manslaughter
6. Jersey v. Holly – Example of a reasonable person is subjective.
a. Issue: Whether alcoholism or other facts should cause the judge to deviate from the
"reasonable person" objective standard (ENGLISH CASE)
b. Two ingredients for provocation:
c. Rule: Intoxication can't apply when deciding if D exercised self-control. But evidence
that the D was suffering from alcoholism was not a matter to be taken into account
by the jury when considering their verdict, having regard to the actual provocation
 and their view of its gravity, a person having ordinary powers of self control would
have done what the D did.
3. Involuntary
a. Unjustified Risk-Taking
i. State v. Hernandez
1. Facts: Jury found Hernandez guilty of involuntary manslaughter; he was driving while
drunk; had sticker on his truck with drinking slogans that the court admitted. D argued it
was error to allow them to be admitted because they were used to show him as the type of
person to do this crime.
2. Rule:
a. Criminal Negligence – when the D fails to be aware of a substantial and unjustifiable
risk that will result in a gross deviation from the standard of care that a reasonable
person would exercise in the situation.
b. Slogans were irrelevant because they proved he didn't mistaken or accidently drink;
attacks character.
3. Dissent: Jury should have been able to decide if the circumstances known to the D in
deciding whether to condemn the failure of perception
ii. State v. Williams
1. Facts: Ds were charged with manslaughter for failing to get their kid medical attention
(gangrene tooth case)
2. Rule: Parental duty to provide medical care for a dependant minor child is recognized
at common law. Therefore, regardless of good intentions or ignorance, they still have
to be held to a reasonable person standard.
3. Proximate cause – Requires consideration of the question of when the duty to furnish
medical care became activated.
a. If it was activated after it was too late, failure to furnish medical care would not have
been said to have proximately caused child's death.
4. Common law in this case only requires ordinary negligence, not criminal negligence
b. Misdemeanor Manslaughter: accidental death that occurs doing the commission of a misdemeanor (even if
it isn’t inherently dangerous)
4. MPC – requires Extreme Emotional Disturbance
a. People v. Cassassa
i. Extreme Emotional Disturbance
ii. Rule: The D must have been under the influence of EED< which is very subjective. Must have a
reasonable explanation or excuse for the EED. Trier of fact has the discretion here.
iii. Heat of passion v. EED
1. Degree of Stimuli
2. Time Frame
3. Cause
a. No time limit or cooling off period –
i. Any impetus for the disturbance is sufficient, it is not limited to legally adequate
provocation
ii. Ex; words like inflammatory taunts would be sufficient provocation.
4. Reaction to D by Stimuli
5. Common Law is much stricter than the MPC on provocation.
a. CL – adequate provocation, no cooling off period, has to be an immediate reaction,
and the victim must cause you do it and you must be reasonable person. (Heat of
passion)
b. MPC – can build over time, internal EED, how a reasonable person IN THAT
SITUATION would act. (EED)
b. Requires reasonableness for the EED, but its determined from the viewpoint of the person in the actor's
situation with the circumstances as he believes them to be.
5. Distinguishing levels of severity
a. Severity of risk
i. Common Law
 1. Knowledge of the facts, but not the risk: manslaughter
ii. MPC Negligence (§ ( 2.02(d)) (not Civil Negligence)
1. Failure to recognize risk, given what defendant knew, not reasonable; gross deviation from
reasonable person standard of care.
6. Degree of unjustifiability
a. Common Law – no negligent homicide
b. MPC – Negligence (§2.02(d))
i. Undertaking a risk of this magnitude for this purpose is not what a reasonable person would have
done in this situation.

Rape
1. Background
a. 16% of rapes are never reported and less than ½ of reported rapes lead to an arrest.
b. Originally was a property offense.
c. There is no mens rea for rape – it’s a strict liability offense.
2. Common Law
a. Elements (Carnal knowledge of a woman, not one’s wife, against her will by use of force [without consent])
i. Sex
ii. By means of force
iii. Against the will of the woman
iv. And without her consent
v. And although often not explicit, resistance is implied
b. Characteristics
i. Gender specific; had to be vaginal sex.
ii. Conduct specific
iii. No spousal rape
iv. Had to be an immediate report of rape
v. Had to be against the victims will and they had to be able to show force.
vi. Resistance was required and the female had to show physical resistance in a way that
demonstrated a lack of consent.
c. Consent
i. Morgan
1. Facts: solider and wacked out husband who had them rape his wife
2. Rule: required the P to establish that the D knew the woman had not consented.
3. A Ds belief that the woman was consenting, even if unreasonable, negates knowledge
of non-consent
a. Controversial.
ii. If a woman consents to sex, then the D cannot be convicted for rape.
iii. This is a jury question.
iv. Some courts – if you don't fight back, then you've established consent.
d. Therefore, non-consent has been transformed into a requirement to RESIST.
i. Spousal Immunity
1. Did not apply to cohabitating, unmarried couples
ii. Force
1. Generally considered to consist of physical compulsion or violence (beyond that involved in
the act of intercourse itself) that effectively subdued the woman
2. Many courts required that the woman have “physically resisted”
iii. Threat of Force
1. Required that the victim’s fear of serious harm be reasonable (had to be a threat of
seriously bodily injury or death to victim or third person)
iv. Consent
1. If a woman consented, D could not be convicted of rape.
2. Consent was determined by a judge or jury.
a. Some courts concluded that “No” was not enough
3. Attacking the Credibility of the Complainant
 a. Common law used to allow cross-examination of the victim
v. Legally Ineffective Consent
1. Common law expanded so that rape could occur even if no force was used.
a. Ex: Sex with a girl under age 10, with a woman who was unconscious, or mentally
incompetent, was automatically rape
e. Common Law: Force
i. Resistance
1. Want resistance to prove a lack of consent
ii. Rusk v. State
1. Facts: V met D at a bar; he asked her to come upstairs, she said no; he took her keys; could
have left but didn’t, ended up having sex.
2. Statute: Rape – vaginal intercourse by force or threat of force against the will or without the
consent of another.
3. Issue:
a. First appeal – whether or not there was sufficient evidence of the required force,
when all he did was look at her.
i. Test – have to show the victim resisted and was overcome by force OR that
she was prevented from resisting by threats to her safety.
ii. First appeal – not enough. There wasn’t’ enough evidence to show that it
was reasonable for her to have fear of force. No evidence to show that if she
had resisted he would have harmed her, so she could have done something
about it. No resistance, no force, no fear, no rape.
b. Dissent of First Appeal – Consent and force are not the same thing. Because we
don’t’ know how big they are, etc, we don’t’ know if a look would be enough.
Court acted like a second jury and substituted their own judgment (Pat was on
the make). V was choked. Verbal resistance is still resistance.
c. Second Appeal – Chief Justice – fact for the jury to decide. Evidence was legally
insufficient for dismissal.
d. Second Dissent – a V can’t just say “I was really scared” to transform a seducer into a
rapist. She has to resist and make it plain that she regards the acts as repugnant.
iii. Commonwealth v. Berkowitz
1. Facts: D and V were in college; went into Ds room; D pushed V back with his body and had
sex with her; she said no repeatedly, but didn’t resist.
2. D was prosecuted for sexual intercourse of forcible compulsion because she wasn’t
unconscious. The PA statute did not require resistance.
3. Statute: Sexual intercourse by forcible compulsion OR threat of forcible compulsion that
would prevent resistance in a reasonable person OR if the victim as unconscious or
incapable of consent is rape.
4. Rule: Court held there was no threat of forcible compulsion because she only resisted
verbally. Verbal resistance isn’t enough unless it’s coupled with a sufficient threat of
physical force or mental coercion.
5. After this case, the legislature changed the statute to say that non forcible, non consensual
sex is rape.
3. Mistake of Facts
a. Commonwealth v. Sherry
i. Facts: D and V are at a party; V goes home with D (playful overtones, but she’s resisting); has sex
with all three; V says she was raped; D says she volunteered to do it.
ii. Statute: Intercourse must be accompanied with force such as to overcome the woman’s will
sufficient to accomplish the man’s purpose of having sexual intercourse with her against her will or
threats with engendered fear reasonable in the circumstances, so it was reasonable for her not to
resist.
iii. Jury Charge – Ds wanted P to have to prove actual knowledge of the lack of consent (claim mistake
of fact)
 iv. Rule: It has to be a reasonable mistake of fact or a good faith mistake not an actual mistake. But they
don’t’ apply this charge because it was not raised at trial. And no court has ever allowed a mistake
of fact in a rape trial.
4. Rape by Fraud
a. Boro v. Superior Court
i. Facts – V is told by someone claiming to be a Dr. that she got a disease from a toilet seat and that
she can either have an extensive treatment that’s expensive and invasive OR have sex with someone
who’s been injected with a vaccine which is less expensive.
ii. Rule: There’s consent and a lack of force, so even though they feel bad, she’s out of luck for a rape
charge.
5. MPC
a. Characteristics
i. Must be without consent and it must be forceful
ii. Becomes important to distinguish between lack of consent and force. Could have a situation where
there is no consent but because there was no force, it’s not rape.
b. Actus Reus
i. Sexual Intercourse
ii. By means of force
iii. Against the will of the woman
iv. Without her consent
v. And although no explicit in the statute, the woman must have resisted (10-40% of rape accusations
are false)

THEFT
1. Robbery
a. Taking of property
b. From the victim's person or presence
c. By force or intimidation
d. With the intent to permanently deprive him of it
2. Larceny – crime against possession (not ownership)
a. Trespassory Taking
b. Trespassory
i. Act must violate possession of an item; if the D has already obtained lawful possession of the
property, his later use of it cannot be a trespass.
c. Taking
i. Have to carry it away somewhere
d. And asportation
e. Of the personal property
i. Real, tangible property
f. Of another
g. With the intent
h. To deprive him of it permanently
3. Larceny by False Pretences/ Larceny by Trick
a. False Pretenses
i. Actually taking title of the property with the intent to deprive
1. Taking title and possession of the property of another
2. By knowingly making a false representation of material facts
3. With the intent to defraud
4. Ex: you pay for gas with counterfeit money. You take title of the property, but you give false
money.
b. Larceny by Trick
i. Taking possession of the property of another
ii. By knowingly making false representations regarding material facts or making false promises
iii. With an intent to defraud
 c. EX: you run out of gas, run off without paying, false pretenses because you appear as though you're going to
pay for it, but you never take title of the gas, you just run off with it.
4. Embezzlement
a. A fraudulent
b. Conversion
c. Of property
d. Of another
e. By one who is already in lawful possession (not mere custody) of it
5. Differences between embezzlement and larceny
a. An actual conversion must occur
b. The original taking must NOT be trespassory
c. Therefore, the conversion for embezzlement is against ownership, not possession
6. MPC: Demise of distinctions surrounding trespassory taking
a. Combined theft definition: 223.1; .2, and .3
7. Mens Rea: For larceny and robbery – you must have the mens rea of the intent to steal it. If you meant to
borrow it and give it back, then your intent was not to permanently deprive them of it.

Defenses
Definition: Any condition or circumstance that prevents conviction for a certain offense.

1. Common Law – Overall

a. D is acting under extraordinary pressure
b. From which there is no reasonable escape
c. To do something that involves injury to his or another's person or property and that, in the absence of
emergency, would clearly be criminal (even if the D doesn't know that)
2. Reasons for no punishment
a. They don’t' have the correct mens rea – Ds mind is blank because he is being forced to commit the crime
b. Can't deter someone from doing something when they're thrust into a situation where death seems
imienent; they're not going to be intimidated by a threat of later punishment.
c. Retribuvist – anyone who succumbs in these terrifying situations is not morally blameworthy for doing so
and should not be punished.
d. Utilitarian – most individuals will succumb in the circumstances, so you can't deter them with threats of
punishment at a later time.
3. Types of Defenses
a. Failure of Proof – Mistake of fact negates mens rea??
b. Even if a victim facilitates a crime he cannot be guilty for being victimized.
c. Justification – precludes criminal liability where despite all the elements of the offense being met, the
harm to be prevented by criminalizing the act is outweighed by the social benefits.
i. Don't want to punish because:
1. They don't have the correct mens rea; Ds mind is blank because he is being forced to
unwillingly commit the crime.
2. Can't deter someone who doesn't want to act like this (there really is no serious deterrence;
they're going to die anyway)
ii. Necessity
1. Common Law:
a. Actor must be faced with a clear and imminent danger
b. Must have a reasonable expectation that action will abate the danger he seeks to
avoid
c. Act charged must have been done to prevent a significant evil
d. There can't have been an adequate alternative to the act
e. Harm cannot be disproportionate to the harm avoided
f. Actor cannot have substantially contributed to the emergency
g. Lawmakers cannot have previously anticipated the choice such that it conflicts with
Ds choice
2. Reasons for
 a. Utilitarian: Want to avoid social harm; if you can't avoid the physical harm by
following the law, you should have the option to do it another way
b. Retributive – only want to punish people with a blameworthy state of mind; if they
have no other choice, you can excuse them.
3. Nelson (guy gets truck stuck in mud)
a. No necessity defense because:
i. There was no emergency
ii. Plenty of lawful alternatives
iii. The harm caused was disproportionate to the possible harm.
4. MPC:
a. No immediacy requirement
b. Much more subjective than CL
c. D must believe his conduct is necessary to avoid harm to himself or others and that
he harm inflicted by committing a “criminal” act is greater than that sought to be
avoided by the criminal law
d. Rejects most common law restrictions on the claim
i. Does not require that he actual infliction of the harm be “imminent”
ii. Does not distinguish between threats from human versus nonhuman forces
iii. Does not restrict the claim to instances involving a threat of death or serious
bodily harm
e. If the D has been reckless or negligent in placing himself in the position where the
necessity occurred, he may still raise the claim in all instances where he is charged
with a purposeful or knowing crime
5. Political Necessity
a. Schoon – indirect civil disobedience is not ok because you're not breaking the law
you're protesting, you're just breaking another law to make your point. But if its
direct disobedience, it's ok because you have to break that specific law to make your
point about the illegality of that law.
b. Cannot be a legal way to prevent the harm (here, they could petition Congress or
vote)
c. Cognizable Harm – a law enacted by Congress cannot be considered a cognizable
harm; therefore the harm created in defying the law cannot outweigh the harm of
the Congressional law.
iii. Self-Defense
1. Utilitarian – socially desirable, because if someone must die in a deadly conflict, it is better
that the aggressor, who’s anti-social nature is manifested by his conduct, be the victim. If it
were otherwise, the dangerous person would remain alive and a threat to others until he’s
taken into custody.
2. Retributive – defensive killing is justifiable because the aggressor forfeits his right to live
when he threatens an innocent person’s life.
3. Overarching rule:
a. To use Deadly Force, there must be: (Peterson)
i. Threat of actual or apparent deadly force
ii. An unlawful and immediate threat of harm
iii. Belief that the force is necessary to prevent deadly force
1. There must be no safe retreat possible
iv. Belief must be honest and reasonable
1. Extent of force used AND imminence of force must be reasonably
believed necessary. (Goetz)
2. Reasonable person in the circumstances. (Goetz)
v. Actor cannot have been the aggressor.
1. A person who causes the attack cannot claim protection if the initial
aggression has not ended.
a. But if the aggressor makes it clear that he withdraws, then
the right of self-defense returns
 b. Can either say he's withdrawing or physical remove himself
from the immediate area?
2. A person is also allowed to defend themselves if the aggressor's force
is wrong, though not unlawful
b. AND the self defense must be proportional to the perceived harm. (Goetz)
i. You cannot use more force than necessary to repel the aggressor.
ii. Size, etc, other attendant circumstances will come into play to decide if there
is proportionality or reasonableness.
iii. Many jxn allow the court to consider specific aspects of the Ds character.
1. Consider reasonable person AND Ds courage; but must be
reasonable.
4. Clarifications:
a. Self defense usually demands that the D take any and all escape routes available
before taking human life.
b. There is a duty to retreat if possible (US v. Peterson)
i. Facts: Punks in Peterson's yard are stealing his windshield wipers; Peterson
goes into the house to get a gun; antagonizes the guy who is leaving to come
at him with a crowbar; shoots the man with the crowbar.
ii. Holding: There is a duty to retreat if possible. (thought a majority of jxn's say
there is no duty to retreat, DC does)
iii. (Aspen) – In states that do have a duty to retreat, it's usually an independent
criterion. A person who does not retreat loses the entire claim of self-
defense.
iv. Castle Doctrine – no duty to retreat in your own home.
1. Defense of habitation – can kill to protect the sanctity of his own
2. The home is the person’s final sanctuary from external attack. They
can’t retreat any further.
c. Immanency – must be immediately or at the moment of danger. The danger must be
pressing and urgent. Can’t be at a later time. Even if it seems clear that the harm at
the hands of another is inevitable, the use of force is premature until the threat is
immediate.
d. Goetz Case
i. Facts: man goes crazy in subway, shoots four men.
ii. Rule: What a reasonable person would do in these circumstances. Therefore,
your past experience and background is relevant, but it's still an objective
standard (not subjective – that D had a reasonable belief)
iii. MPC: interpreted to be the objective standard.
iv. Both the extent of the force used must be reasonably believed to be
necessary and the imminence of force to be used against the D must be
reasonably believed.
e. Mistake:
i. In self defense cases, a D could be mistaken in his belief that he is about to be
attacked or about the need to use deadly force to repel the attack, or in his
belief that retreat is not likely to be successful.
ii. BUT THIS BELIEF MUST BE REASONABLE, according to modern standards.
f. Battered Wife Syndrome
i. Problem with the immanency.
ii. If the husband beats her and falls asleep, it could put an end to the entire
episode.
iii. So even if the battered wife reasonably believes that the battering will
continue when the husband wakes up, she becomes the aggressor against
the sleeping husband and can't avail itself of the self-defense claim (under
common law, unless there is an applicable statute)
iv. All courts admit evidence of the syndrome, and some statutes explicitly
provide the evidence is admissible
 5. MPC:
a. Ds belief to use force doesn’t have to be reasonable, overall, but most specific
justification defenses require a reasonable belief of harm.
b. Use of deadly force is not justifiable under this section unless the actor believes such
force is necessary to protect himself against death, non violent harm
c. Adopts changes wrought in American courts – retreat is required except at Ds home
of office, so long as the D knows he may retreat in complete safety.
d. Allows the D to have an honest belief to allow the claim; but if the D has been
reckless or negligent in reaching the mistaken belief, allows them to be prosecuted
for manslaughter.
e. Uses immediate instead of imminence – can use deadly force sooner, depending
on when they feel that there is an immediate need.
f. Deadly Force: Definition
i. Deadly force is unjustifiable unless the actor believes that such force is
immediately necessary to protect himself on the present occasion against:
1. Death
2. Serious bodily injury
3. Forcible rape
4. Kidnapping
ii. Cannot be an aggressor to use deadly force
iii. There is a duty to retreat – BUT
1. Exceptions
a. Castle doctrine
i. Exception to the exception
ii. Must retreat from home or office if: actor was the
initial aggressor OR if he is attacked by a coworker in
their place of work
iv. Defense of Others
1. People v. Kurr
a. Rule: If unborn children were able and allowed to defend themselves, they would, so
therefore another person could act to defend them on their behalf.
b. Here, the Legislature wants to protect all fetuses, so even if it wasn't viable, she gets
a defense of others charge.
c. May use for only if the third party would be justified in using force to protect
oneself (hence, does not apply to killing an undercover cop who is going after
a criminal, even if you didn't know)
v. Defense of Property
1. Common Law
a. D can use non-deadly force to defend property when he has an honest and
reasonable belief that it is necessary to protect real or personal property from
imminent unlawful taking, damage, dispossession, or trespass. Can also use it to
reenter property or to recover property immediately after its been taken. Limits:
i. There cannot be time to use other lawful measures , such as calling the
police
1. (wouldn't be a necessity if could call)
ii. Has to warn the aggressor to stop unless it is clear that the warning would
be useless or it would cause risk to himself or his property.
iii. Cannot use deadly force solely to protect property. Human life is more
than property. But if he then is met with what reasonably appears to be
deadly force by the thief, he can respond with deadly force in self-defense.
1. And if the thief does not use deadly force but the homeowner does,
then the thief can use deadly force because the homeowner has
surpassed his legal right.
b. People v. Ceballos
 i. Facts: D had a booby trap in his garage because he had equipment in there.
Tools were stolen, so he set up the trap. 16 year old entered and shot in the
face.
ii. D argues – had a right to do indirectly what he could have done directly. Any
attempt by him to commit a violent injury was not unlawful, and therefore
neither was the assault
iii. State argues – trap gun constitutes excessive, disproportionate force.
Circumstances were not such that the use of deadly force was warranted.
iv. Rule: cannot use deadly force to defend your property unless there's a fear
of great bodily harm. Where the character and manner of the burglary
do not reasonably create a fear of great bodily harm, there is no cause
for exaction of human life or the use of deadly force.
v. Human life is more important than defense of property.
2. MPC: To effect an entry provided that the actor believes he or the person by whom
authority he acts was unlawfully disposed upon such land or movable property and is
entitled to possession, provided that:
a. The force is used immediately or on fresh pursuit of such dispossession OR
b. The actor believes that the person against whom he uses force has no claim of right
to the possession of the property and into eh case of land, the circumstances, as the
actor believes them, are of such urgency that it would be an exceptional hardship to
postpone the entry or reentry until a court order is obtained. OR
3. MPC: Limitations on justifiable use of force
a. Request to desist – force is justifiable under this section only if the actor first
requests the person against whom such force is used to desist forum his
interference with the property, unless the actor believes that:
i. Such request would be useless OR
ii. It would be dangerous to himself or another person to make the request OR
iii. Substantial harm will be done to the physical condition of the property
which is sought to be protected before the requires can effectively be made.
b. Force, even if otherwise justified, cannot e used if the actor knows it may
expose the aggressor to serious bodily injury
c. Deadly force can only be used if:
i. she believes she is defending her dwelling against someone with no claim to
possession OR
ii. the aggressor is committing a serious crime and has used or threatened
deadly force OR
iii. The actor's use of non-deadly force would expose her (or someone else in
her presence,) to substantial danger of serious bodily harm.
d. Excuses – defense that precludes liability; despite social harm of the offense and the fact that the actor has
fulfilled all the elements for conviction, the actor shouldn't be held liable because of his circumstances
i. Duress
1. Common Law
a. A reasonable fear of
b. A threat from a human being of
c. An imminent or immediate
d. Serious bodily harm or death
e. To himself (or his relative)
f. Not of his own doing.
2. CL Elements:
a. Requires a personal injury; No threat to property will suffice.
b. There can't be a reasonable opportunity to escape harm.
c. Imminence
i. If a person is not told when the beating will occur, the threatened injury is
not imminent ( though usually a jury question)
 ii. If a threat is continuous or open-ended, the fear is real, focus on the effect of
the threat on the Ds mental state, not on imminence
d. Reasonableness of Fear
i. Only a reasonable fear is sufficient to sustain a claim of duress.
ii. Requires a Ds believe that the police cannot protect her to be reasonable.
e. To himself
i. Common law initially limited duress to cases where the D personally was
threatened
ii. But this limit has mostly been discarded
f. D cannot have been a aggressor
i. D cannot have been responsible for the threat. If D knowingly joins a violent
gang and later commits a crime under threat of immediate death from the
gang, he will not be permitted to claim duress
ii. There is a duty to listen to superior officers in the military though; did a
person create his own conditions by entering the armed forces? Unclear.
g. Random Rules:
i. Only a threat of death or seriously bodily harm will sustain a claim of duress.
And since it's not allowed in homicide cases, under the CL the Ds act is
almost surely less harmful than the harm with which he was threatened.
(HARM MUST BE PROPORTIONATE; LESS HARMFUL)
ii. D must carry the burden of proof that he was under duress.
ii. Duress and Homicide
1. Common Law – a D cannot claim duress if he killed a victim. (thought some states have
overturned this)
iii. Duress and MPC
1. Threat must be one of personal injury, not property damage. Also allows a threat of
unlawful force, so it could be the threat of a minor physical harm.
2. Varied the common law's requirement of reasonable ness by requiring that the threat
involved would have similar affected a person of reasonable firmness in the Ds situation.
3. Duress is a valid claim in all prosecutions, including homicide, and there is no restriction of
imminent harm.
4. Like CL, MPC disallows the duress claim if the D recklessly placed himself in the position
where he could be duressed.
iv. Insanity Defense
1. General:
a. Burden of persuasion is on the D to show that they're incompetent to stand trial or
that they're insane.
b. In order to be competent the D has to show sufficient present ability to consult with
his lawyer with a reasonable degree or rational understanding. D must have a
rational as well as a factual understanding of the proceedings.
2. Several Analytical Inquiries
a. McNaughton Rule
i. Didn't know nature and quality of his action OR
ii. Did know the nature and quality of the action but didn't know what he was
doing was wrong.
iii. Ex – drowning a baby (thought he was washing clothes or if he didn't know
that drowning a baby was wrong)
iv. Criticisms
1. Some people know that what they're doing is wrong, but they do it
anyway
2. Restricts expert testimony; but they do it anyway.
3. All or nothing approach
4. Calls for experts to make moral judgment calls.
b. Irresistible Impulse or Control Test
 i. Irresistible impulse is considered in terms of complete destruction of the
governing power of the minds – assumes that the person is only going to be
determined legally insane if it’s the result of a sudden, explosive fit.
ii. Adds a volitional component
iii. Critic – too narrow; doesn't take into consideration a person who is
brooding and unable to resist a sustained psychic compulsion
c. Product or Durham Test
i. Accused person is not criminally responsible if their unlawful conduct was a
product of a mental disease or defect
ii. (designed to facilitate complete expert testimony and allow the jury to
consider all the information about the Ds mental illness)
iii. VERY broad – not jxn uses this test because it's too broad
d. MPC
i. A person is not responsible for criminal conduct if at the time of such
conduct as a result of mental disease or defect he lacks substantial capacity
either to appreciate the criminality (wrongfulness) of his conduct or to
conform his conduct to the requirements of the law.
1. Mental disease or defect is NOT an abnormality manifested only by
repeated criminal or otherwise antisocial conduct.
ii. Differences:
1. Has to appreciate instead of know (they might know it's wrong but
they don't appreciate HOW wrong it is; that is' going to cause them
pain, etc – analogy to a child)
2. Includes wrongfulness and criminality – lets the jxn decide which
they want to use
3. Wrongful – moral component
4. Cognitive and volitional aspect – more than just the Ds disposition,
etc. It's both cognitive volitional.
e. If a D does not truly appreciate the wrongfulness of his conduct if a mental disease
or defect causes him to both harbor a distorted perception of reality and to believe
that, under the circumstances as he honestly perceives them, his actions do not
offend societal morality, even though he may also be aware that society on the basis
of the criminal code, does not condone his actions. Allowed insanity defense if he
believes that society WOULD approve of his conduct if it shared his understanding
of the circumstances underlying his actions.
f. D can be relieved of criminal responsibility if he can show that society would
approve of his conduct if they shared his same view of the circumstances
(Wilson Case – standard most jxn use)
e. Non Exculpability Public Policy
i. You could be guilty of the offense but the defense would be a statute of limitations or something like
that. Underlying rationale – want some type of finality in criminal justice system

Inchoate Crimes
1. Solicitation
a. Solicitation punishes anyone who deliberately encourages, invites, requests, commands, or hires someone
else to commit a crime.
b. Policy:
i. Police can prevent the commission of a more serious crime by arresting the initiator as soon as he
has acted with the necessary mens rea to commit a crime.
ii. There is no need for proximate cause here – there is no need to determine its prospects for success.
iii. However, mere encouragement without agreement by anyone else is not socially dangerous
because the resisting will of an independent moral agent stands between the solicitor and the
commission of the intended crime.
 iv. Permits the arrest of people who have shown themselves to be dangerous because they have acted
with the purpose to cause the commission of a crime. (Not thoughts alone because they have
spoken words of their intent)
v. Some states limit solicitation to only major crimes. MPC – it is an offense to commit any crime, but
soliciting someone to commit a violation is not punishable.
c. Common Law:
i. Actus Rea: By words or conduct, a D must enticed, advised, incited, ordered, or encouraged the
person to commit the crime. The person does not have to agree to commit the crime; simply asking
the person to is enough.
ii. Mens Rea: D must intend that the individual solicited commit a crime. Must be serious about it;
must have specific intent as to the conduct, results, and circumstances.
iii. Under the CL – the solicitor is an accessory before the fact.
iv. Cotton: jail inmate wrote letters to his wife asking her to commit crimes; though he attempted to
mail the letters, roommate intercepted them, couldn’t be charged with solicitation because they
didn’t reach her. Therefore, could be charged with attempted solicitation, but not solicitation
d. MPC:
i. A person is guilty of solicitation if with the purpose of promoting or facilitating its commission, he
commands, encourages or requests another person to engage in specific conduct that would
constitute such crime, or an attempt to commit such crime or would establish his complicity in its
commission or attempted commission.
ii. Applies to any crimes, not just felonies or serious misdemeanors
iii. CL only applied to the solicitation of another to act as a principle in the first degree, MPC includes
any encouragement that would generate responsibility of an accomplice.
iv. EX: if a D encourages a gunman to sell him a weapon with which the D himself could kill a victim,
the D has committed solicitation because he has encouraged the gunman to become an accomplice.
v. Mens Rea – requires purpose. Must desire to encourage all conduct and result elements of the crime
solicited and must know or believe that all circumstance elements will be satisfied. He must also
satisfy the mens rea for the crime he is soliciting.
2. Attempt – punishes offenders who intend to commit a crime, and act to impalement the intent, but
don’t achieve their goal
a. Policy
i. Police can prevent crime by arresting an offender before he actually commits his target crime.
ii. Enables the justice system to punish individuals who have acted on their criminal intentions and
are dangerous.
iii. Seriousness of attempt is dependent on the seriousness of the attempted crime.
iv. Retributive
1. If a person shoots but misses her victim, she’s just as morally culpable as the person who
hits her victim.
2. A person, who attempts to commit a crime, by her actions, disturbs the order of things
ordained by law, so punishment is necessary to restore the public order.
v. Utilitarian
1. Anyone who attempts to commit a crime is dangerous.
2. A person may assume that if she is successful in her conduct, she will avoid detection, so she
will be willing to risk the penalty for the targeted crime. But she may figure that if she fails
in her attempt it will be because she executed the crime poorly, so she’ll be deterred by the
punishment imposed for attempt.
3. Helps preventative law enforcement. Gives police offers the legal authority to stop criminal
activities before they are consummated.
b. CL: attempt punishes people who intend to commit a particular crime and take a significant step
towards its commission.
i. Dual Intent Crime: Must intend to do the act and to accomplish the result, under the same
circumstance.
1. The actor must intentionally commit the acts that constitute the actus reus of an attempt
(she must intentionally perform acts that bring her in proximity to commission of a
substantive offense AND
 2. The actor must perform these acts with the specific intention of committing the target crime
(this is a specific attempt offense even if the target offense is a general-intent crime.
3. Intend the Act: cannot commit an attempt recklessly or negligently. He must intend the act.
a. Mens Rea – specific intent crime; must have the intent to commit the target crime.
(usually very demanding standard because it does not require successful
completion of the crime)
4. Intend the Result: he must intend the result of the crime (cannot be convicted of attempted
murder if you hurt someone recklessly)
5. Intend the Circumstances: must intend the circumstances of the target offense (even if strict
liability applies)
ii. Actus Reus – Tests
1. Last Act Test
a. Some courts used to state that a criminal attempt only occurred when the person
performed all of the acts that she believed were necessary to commit the target
offenses
i. Problem: attempt can occur at least by the time of the act, but no jxn require
that it reach this stage on all occasions. Police would be stymied by this rule.
ii. Pros: bright line
2. Physical Proximity Test
a. While an actor’s conduct need not reach the last act, it must be proximate to the
completed crime, in that it must approach sufficiently near to it to stand either as
the first or someone subsequent step in a direct movement towards the commission
of the offense after the preparations are made. “It must go so far that it would
result, or apparently result in the actual commission of the crime it was
designed to effect, if not extrinsically hindered or frustrated by extraneous
circumstances. “
b. An attempt does not arise unless an actor has it within her power to complete the
crime almost immediately.
3. Dangerous Proximity Test
a. A person is guilty of an attempt when her conduct is in dangerous proximity to
success or when an act is so near to the result that the danger of success is very
great.
i. No clear point. Holmes – nearness of the danger, greatness of the harm,
degree of apprehension felt.
ii. Rizzo – because the victim was absent, the armed suspects were not
dangerously close to success.
b. Pros: flexible
c. Cons: provides little guidance to police offences on the street, who must determine
when they can arrest a suspect
4. Indispensible Element Test
a. A person is guilty of attempt when they’ve gotten rid of all indispensable aspects of
the criminal endeavor over which the actor has not yet acquired control.
b. Pros: easier to apply than dangerous proximity
c. Cons: arbitrary; says little about culpability and intentions
5. Probable Desistence
a. Person is guilty of attempt when in the ordinary course of event; the actor reached a
point where it was unlikely that he would have voluntarily desisted from his effort
to commit a crime.
b. Try to figure out the point of no return.
6. Unequivocality test
a. Res Ipsa test
b. An act does not constitute an attempt until it ceases to be equivocal. Attempt
occurs when a person’s conduct, standing alone, unambiguously manifests her
criminal intent.
iii. Clarifications
 1. Result Crimes – offense defined in terms of a prohibited result. A person is not guilty of an
attempt of a result crime unless her actions in furtherance of the prohibited result are
committed with the specific purpose of causing the unlawful result
2. All but two states don’t allow attempted felony-murder because it requires a specific intent
to kill and the Ds intent to commit a felony does not substitute or the intent to kill.
3. You cannot attempt to commit involuntary manslaughter because you can’t attempt to
commit an involuntary crime.
4. Conduct Crimes – crimes who actus reus are defined in terms of conduct rather than
injurious results
a. Ex- reckless endangerment. So long as she has the intent to commit reckless
endangerment when he drives blindfolded as a joke, you can have attempted
reckless endangerment if you’re caught before you do it.
c. MPC
i. Must have the purpose to commit the target offenses AND to conduct constituting a substantial step
toward the commission of the target offense:
1. See List.
ii. Mens Rea – it must have been her purpose (conscious objective) to engage in the conduct or to
cause the result that would constitute the offense.
1. Exceptions
a. Person is guilty of an attempt to cause a criminal result if she believes that the result
will occur, even if it wasn’t her conscious objective to cause it
b. Purpose. Belief does not necessarily encompass the attendant circumstances
d. Defenses
i. Impossibility
1. Legal Impossibility is a defense– if a person encourages someone to do something that is
not a crime; it’s not solicitation, even if the person erroneously believes it’s a crime.
2. Factual Impossibility is not a defense – when a person’s intended end constitutes a crime,
but she fails to consummate the offense because of an attendant circumstance unknown to
her or beyond her control.
a. Ex – pickpocket putting her hand in the victim’s empty pocket.
b. Because the D was mistaken regarding some fact relating to the crime and if the
factors had been as he wanted them to be he would have committed a crime,
lawmakers are not sympathetic.
3. Hybrid Legal Impossibility – if the actor’s goal is illegal, but commission of the offense is
impossible due to a factual mistake regarding the legal status of some attendant
circumstance that constitutes an element of the charged offense.
a. Ex – if D receives un-stolen property he thinks is stolen, etc.
b. He is mistaken about the legal status of the ds conduct (but it’s almost exactly like
c. Policy – most states have abolished this defense (so that lawyers and courts don’t
have to distinguish between factual impossibility and hybrid legal impossibility)
i. For – you’re punishing someone who wanted to commit a crime and thought
they were committing a crime, but for some circumstances they didn’t know
about
ii. Against – you’re basically punishing for thoughts, because the actions made
were not sufficient.
4. MPC –
a. Would not convict the D only in cases of true legal impossibility (where there is no
law prohibiting the conduct).
b. Factual Impossibility – MPC assesses the Ds responsibility based on what he thought
the facts were.
ii. Abandonment
1. Most scholars believe that abandonment was not a common law defense to attempt and
may courts refuse to recognize the difference.
2. But – if a D completely and voluntarily renounces her criminal purpose, can she use it as a
defense.
 a. Its voluntary when she has a genuine change of heart.
b. It is not voluntary when the actor is motivated by unexpected resistance, absence of
an instrumentality essential to the completion of the crime, or some other
circumstance that increases the abandonment is not complete if the actor merely
postpones the criminal endeavor until a better opportunity presents itself.
3. Relationship between Solicitation and Conspiracy
a. Solicitation is defined solely by the actor’s intent and conduct. Response of the person solicited is irrelevant
to the crime.
b. If the person solicited responds to the solicitation and agrees to commit the act, the two have entered into a
conspiracy.
i. A person cannot be convicted of both conspiracy and solicitation or both conspiracy and
attempt.
4. Conspiracy
a. Policy
i. Helps police intervention
ii. Fills in the gaps in the unrealistic law of criminal attempts
iii. Special Dangers or Group Criminality – two people united to commit a crime are more dangerous
than one on his own.
b. CL
i. Agreement between two or more persons to commit a criminal act or serious of criminal
acts, or to accomplish a legal act by unlawful means.
1. Does not need to be an express agreement
2. A conspiracy may exist even if a conspirator does not agree to commit or facilitate each and
every part of the substantive offence. It’s enough that each person agrees to commit or
facilitate some of the acts leading to the crim.
3. Cook: brothers raped girl who fell on the ground; because they didn’t have time to form an
agreement, he was an accomplice, not a conspirator.
ii. One of the parties must make an overt act toward the furtherance of the crime.
1. Many statutes diverge from the CL and require that there be an overt act.
2. Any act, no matter how trivial is sufficient, if it’s performed in pursuance of the conspiracy.
Writing a letter or making a phone call is enough.
3. But if there’s an act by anyone in the party, that’s enough for all of them.
c. Pinkerton Doctrine:
i. Conspiracy – an agreement between two or more person to participate in the crime is the key to
conspiracy. Actual assistance in the crime is not necessary. Just requires proof that an actor at least
indirectly participated in the crime; an agreement to do so is not needed.
ii. In most circumstances, an accomplice is also a conspirator with the primary party in the
commission of the crime.
1. They’ll overlap completely
iii. Pinkerton – because the primary party violated the IRS Code, while the secondary party was in jail,
he couldn’t assist, so his liability was decided solely on conspiracy because he had agreed to commit
the crime before he was sent to jail.
iv. Pinkerton Doctrine: a party to a conspiracy is responsible for any criminal act committed b y an
associate of it IF:
1. It falls within the scope of the conspiracy OR
2. It’s a reasonably foreseeable crime committed by a coconspirator
3. Not all jxn have adopted this rule. Extensive application of the rule (ex – a huge prostitution
ring) would make relatively minor parties liable for the larger charges because of a criminal
agreement.
d. MPC
i. Person is guilty of conspiracy with another person or persons to commit a crime if with the propose
of promoting or facilitation its commission, he:
1. Agree with such other person that they will engage in conduct that constitutes such crime
OR
 2. Agrees to aid such other person in the planning of commission of such crime or of an
attempt or solicitation to commit such crime
ii. He must intent to agree AND intent to commit the offense Absence of either intent renders the Ds
conduct nonconspirital.
iii. Must be an overt act for felonies in the third degree, but no overt act requirement for first and
second degree felonies.
iv. But a person cannot knowingly intend to commit an unintentional crime – so if it they act the
commit is not the act they intended to achieve, they can’t have conspiracy to commit the
unintended act.
5. Complicity/Accomplice Liability
a. Common Law
i. Primary Party – person who personally commits the physical acts that constitute an offense.
1. Principle in the First Degree – person who with the requisite mens rea:
a. Physically commits the acts that constitute the offense OR
b. Commits the offenses by the use of an innocent instrumentality or innocent human
being
c. (He’s the one who actually commits the offense!)
2. Principle in the Second Degree – accessory at the fact
a. Ex – lookout/driver of get-away car.
3. Accessory Before the Fact – does not differ much from Principle in Second Degree, but he
was not present at the time of the crime. He’s the person who solicits, counsels, or
commands the principle in the first degree to commit the offense.
a. Ex – get a gun
4. Accessory After the Fact – an accessory after the fact, I s one who, with knowledge of
another’s guilt, intentionally assists the felon to avoid arrest, trial, or conviction. The
commission of his offense happens after the acts constituting the crime have ceased.
a. Ex - hides the gun.
ii. Secondary Party - person who assists in the commission of the offenses.
1. The secondary party is an accomplice of the primary party in the commission of an offenses
if he intentionally assists the primary party to engage in the conduct that constitutes the
crime (that he intends to assists and does in fact, assist)
b. Limits to accomplice liability
i. Abandonment – a person who provides assistance to another for the purpose of promoting or
facilitating the offense, but who subsequently abandons the criminal endeavor, can avoid
accountability for the subsequent criminal acts of the party
1. Must communicate his withdrawal to the principal and make bona fide efforts to neutralize
the effect of his prior assistance.
c. MPC
i. A person is guilty of an offense if he commits it: by his own conduct or by the conduct of another
person for which he is legally accountable, or both.
1. A person can be convicted if he personally commits the crime of if his relationship to the
person who commits it is one for which he is legally accountable.
ii. Accomplice Liability: a person is legally accountable for the conduct of another person if he is an
accomplice of the other in the commission of the crime.
iii. MPC rejects the Pinkerton Doctrine; believed there was no better way to confine within reasonable
limits the scope of liability to which conspiracy may theoretically give rise.
iv. Nature of an Accomplice:
1. (1) If he solicits P to commit the offense; (2) if he aids, agrees to aid, or attempts to aid P in
the planning or commission of the offense, or (3) he has a legal duty to prevent the
commission of the offense, but make s not effort to do so.
2. Accomplice Liability by Solicitation: no definition; exists if S’s conduct would constitute
criminal solicitation
3. AL by Aiding: (gets rid of all the CL definitions)
 4. AL by Agreeing to Aid: S is an accomplice of P if he agrees to aid P in the planning or
commission of an offense. But agreeing to aid is not the same as conspiring to commit an
offense.
5. AL by Attempting to Aid: S may be held accountable as an accomplice of P in the commission
of an offense if he attempts to aid in the planning or commission of the crime, even if his aid
proves ineffectual.
v. Mens Rea – purposely, not knowingly.