I.

Purposes of Punishment
a. Deterrence
i. general- discourage public @ large
ii. specific- discourage individual offenders from repeating their crimes (self-interest not to be punished again)
b. Rehabilitation- instill values and attitudes & provide means to live a productive life
c. Incarceration (incapacitation or protection)- rendering the criminal incapable of doing harm
i. prison, death
ii. difference b/t incarceration & specific deterrence: don't care about mindset, are physically removed
d. Retribution- "give the offender what he deserves"
i. satisfies a societal need to avenge the harm, rather than a desire to rehabilitate or deter the offender
e. Burden of Proof
i. In re Winship
i. The Constitution requires the prosecutor to persuade the fact finder beyond a reasonable doubt of every fact necessary
to constitute the crime charged, in both juvenile proceeding and adult criminal trials, because the same stigma and
potential loss of liberty is there

b. §1.02—Purposes
1. The general purposes of the provisions governing the definition of offenses are:
a. To forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial
harm to individual or public interests
b. To subject to public controls persons whose conduct indicates that they are disposed to commit
crimes
c. To safeguard conduct that is without fault from condemnation as criminal
d. To give fair warning of the nature of the conduct declared to constitute an offense
e. To differentiate on reasonable grounds between serious and minor offset
2. The general purposes of the provisions governing the sentencing and treatment of offenders are:
a. To prevent the commission of offenses
b. To promote the correction and rehabilitation of offenders
c. To safeguard offenders against excessive, disproportionate or arbitrary punishment
d. To give fair warning of the nature of the sentences that may be imposed on conviction of an offense
e. To differentiate among offenders with a view to a just individualization in their treatment

II. Principle of Legality

a. Common Law Crimes
i. Why do they exist?
1. keep up w/the movement in the community where the legislature hasn't acted
ii. State v. Bradbury- burned body in basement furnace; offense @ common law
1. Essence of the charge isn't that the body was burned but that it was done so indecently
iii. Commonwealth v. McKarski- picketing & alleged that truck hit him; arrested for common nuisance & improper conduct
1. don't want to make exception to rule of criminal law that nothing is a crime unless it's plainly forbidden by law
a. Must be classified as a crime by legislature
b. Want to make what is a crime very clear
i. Can't punish people for committing acts that they didn't know were crimes
2. Legislatures are more active in codifying and exacting statutes  no longer a need for common law crimes
a. Used to meet a lot less frequently in the past, more of a need for common law crimes
3. Legislature can now step in quickly and react to unforeseen problems (i.e. internet)

b. Statutory Crimes- look @ words, leg. intent, prior interpretations, analogous statutes, other jurisdictions
i. Keeler v. Superior Court- D kneed ex-wife in stomach (who was significantly pregnant) causing baby to be stillborn; D
charged w/murder of baby
1. Court looks to legislative intent when statute was first enacted – determine that legislature meant to exclude an
unborn fetus from the definition of “human being” w/i the murder statute
2. Court can't redefine "human being" b/c to do so would be to create a new common law crime and they don't
have the power to do so, only legislature can create crimes
a. Judicial enlargement proposed couldn't have been foreseeable by defendant and to adopt it would
deny him due process of law  requirement of fair warning

c. Void-for-Vagueness
i. Basic principle of due process: an enactment is void for vagueness if its prohibitions are not clearly defined
1. b/c laws must give a reasonable person an opportunity to know what it prohibited, so that he may act
accordingly
2. void if the statute could be arbitrarily and discriminatorily enforced
a. however, doesn’t completely eliminate this problem – have to make statutes very specific to diminish
the problem
 3. It must provide
a. fair warning that it is a crime to a person of ordinary intelligence
b. must have explicit standard of enforcement for those who apply them (avoid arbitrary &
discriminatory enforcement), and
c. Must be clear in terms to avoid inhibiting the freedom of exercise of 1st Amendment rights.
i. People will censor their behavior if they don’t know where the line b/t legal & illegal is
ii. Grayned v. City of Rockford- D took part in protest in front of school; arrested for violating “anti-picketing” and “anti-
noise” statutes
1. Supreme Court doesn’t have power to “interpret” state statute, therefore, “extrapolate”  determine how IL
Supreme Court would interpret the statute if they had to
a. Held that statues weren’t vague  don’t contain a broad invitation to subjective or discriminatory
enforcement
iii. Kolender v. Lawson- D charged w/violating law that requires people stopped by cops to provide “credible & reliable” ID
1. statute is unconstitutionally vague w/i meaning of Due Process clause by failing to clarify what is meant by the
requirement that a suspect provide a "credible and reliable" ID
a. ordinary person must understand what the statute is asking for (fair warning)  no standard to
determine what a suspect has to do in order to fulfill the requirement of providing "credible and
reliable" ID

III. Actus Reus

a. In General
i. Actus reus: The wrongful deed that comprises the physical components of a crime and that generally must be coupled
with mens rea to establish criminal liability; a forbidden act

ii. §2.01. Requirement of Voluntary Act

1. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the
omission to perform an act of which he is physically capable…(p.58)
2. The following acts are not voluntary acts within the meaning of this Section (p.62):
a. A reflex or convulsion;
b. A bodily movement during unconsciousness or sleep;
c. Conduct during hypnosis or resulting from hypnotic suggestion;
d. A bodily movement that otherwise is not a product of the effort or determination of the actor, either
conscious or habitual…
3. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless (p.72):
a. The omission is expressly made sufficient by the law defining the offense; or
b. A duty to perform the omitted act is otherwise imposed by law...
4. Possession is an act, within the meaning of this Section, if the possessor knowingly procured or received the
thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his
possession. (p.62)

iii. US v. Shabani- D charged w/conspiracy to distribute coke; D asking court to read into the statute an overt act that
wasn’t there
1. Legislative intent was to omit the requirement of an overt act in the conspiracy statute (consistent w/common
law) there is still an act however, the agreement to commit the crime is the unlawful act necessary for
conspiracy
iv. Powell v. Texas- D arrested for public drunkenness; argued that b/c he had chronic alcoholism, it was cruel & unusual
punishment under the 18th Amendment to arrest him for it since he had no control over his behavior
1. Held it wasn’t cruel & unusual  statue includes act requirement & D’s conduct fulfilled that requirement

b. Affirmative Acts
i. Some crimes committed just thru speech: conspiracy, perjury, yelling “boo!” behind someone standing @ the edge of a
cliff (jumps out of fright & falls off cliff)
ii. Every involuntary act is preceded by a voluntary act
1. Have to identify the relevant conduct that leads to the act (voluntary or involuntary)

iii. People v. Shaughnessy- D was passenger in a car that went onto private property & was charged w/violating statute
prohibiting entry upon private property; argues statute is unconstitutional b/c punishes someone criminally w/o
individual having the intent to commit an act that constitutes a crime
1. Held: An involuntary act isn’t criminal  An overt act or an omission to act must occur in order for the
establishment of a criminal offense
iv. Wise v. State- D got into bar fight, was hit on side of head w/bottle, ends up stabbing other guy in chest; claims to have
suffered a certain type of seizure b/c of blow to head and was unconscious during the attack
1. Reversed conviction & remanded to allow expert witness re: D’s seizure can’t punish an involuntary act
a. None of the purposes of punishment would be served by convicting D (solitary act that’s unlikely to
reoccur)
 c. Omissions
i. State v. Miranda- D convicted of assault for abuse of gf’s child – had legal duty to protect child
1. In general there is no legal duty to help someone else in danger, BUT there are 4 exceptions
a. Where one stands in a certain relationship to another ( @ common law: parent-child; husband-
wife; master-servant)
b. Where a statute imposes a duty to help another (have to stop if in a car accident)
c. Where one has assumed a contractual duty (lifeguard, babysitter, nursing home)
d. Where on voluntarily has assumed the care of another (dr-patient; caretaker of elderly)
2. A person must act when (1) they have a legal duty to act and (2) they can physically perform the act
a. Also implicit is that there is little risk to the individual in performing
3. D had assumed role of father, therefore, had legal duty to protect child

IV. Mens Rea

a. In General

i. §2.02. General Requirements of Culpability

1. Minimum requirements of Culpability. Except as provided by Section 2.05, a person is not guilty of an offense
unless he acted purposely, knowingly, recklessly or negligently, as the law my require, with respect to each
material element of the offense…
ii. A person is guilty of an offense if their conduct includes :
1. A voluntary act or omission (actus reus)
2. Accompanied by the requisite mens rea
3. Legal cause of the harm proscribed by the offense
iii. Hierarchy of culpability
1. Purpose
2. Knowledge
3. Recklessness
4. Criminal negligence
iv. Each of the definitions deal w/3 different contexts
1. Causing a particular result – what result is the offense concerned w/?
a. Gypsum- fixing prices
b. Budish- burning down structures & land
c. Leonardo- serious physical injury
2. Knowledge of attendant circumstances
3. Purpose
v. MPC: Culpability Not Provided
1. When the culpability sufficient to establish a material element of an offense isn’t prescribed by law, such
element is established if a person acts purposely, knowingly or recklessly w/respect thereto
a. Recklessness is the minimum threshold
vi. MPC: Culpability Applies to All Elements
1. If there is no distinguishing among the material elements of an offense, the culpability prescribed will apply to
all the material elements (unless a contrary purpose plainly appears)
a. Example: “It is illegal to knowingly sell porn to minors”
i. Actor must know: (a) it’s porn being sold & (b) that it’s being sold to minor
vii. MPC: Substitutes
1. When the law provides negligence establishes an element  established if person acts reckless, knowingly
or purposely
2. When recklessness suffices  established if person acts knowingly or purposely
3. When knowingly suffices  established if person acts purposely
viii. For a criminal offense to occur there has to be this mens rea (culpability) and that culpability has to be specific to
the particular offense in question
1. When someone inadvertently causes a harm they're less culpable than someone who recklessly or purposely
cause the harm and he shouldn't be treated the same
ix. Morisette v. US- D took spent bomb casings & sold them for scrap; convicted of “knowingly converting” gov’t property
1. Reversed conviction: D had no intent to steal  congressional silence re: intent w/i this statute (i.e. common
law offenses) is in line w/common law tradition that intent is inherent (not necessary to include in the statute
b/c it is so inherent)
a. NOT the case w/public welfare offenses
x. Regina v. Cunningham- D stole gas meter from basement of house, causing gas to escape and partially asphyxiate the
woman living in the house next door; convicted o/larceny & violating Offenses against the person act (unlawfully &
maliciously caused to be taken by Mrs Wade noxious coal gas that endangered her life)
1. Reversed
a. In any statutory definition of a crime, malice requires either (1) An actual intention to do the
particular kind of harm that in fact was done; or (2) recklessness as to whether such harm should
occur or not (i.e. accused has foreseen the harm might be done and continues)
i. Because without this, there would be no deterrence, retribution, restraint, or rehabilitation
without the desire, willfulness, or knowledge to produce the result
 b. Can’t use mental state from one offense (larceny) to satisfy the mental state for another offence
(offense against the person)

b. Purpose & Knowledge

i. §2.02. General Requirements of Culpability

2. Kinds of Culpability Defined
a. Purposely: A person acts purposely with respect to a material element of an offense when:
i. If the element involves the nature of his conduct or a result thereof, it is his conscious
object to engage in conduct of that nature or to cause such a result; and
ii. If the element involves the attendant circumstances, he is aware of the existence of such
circumstances or he believes or hopes that they exist.
b. Knowingly: A person acts knowingly with respect to a material element of an offense when:
i. If the element involves the nature of his conduct or the attendant circumstances, he is aware
that his conduct is of that nature or that such circumstances exist;...
ii. if the element involves the result of his conduct, he is aware that it is practically certain
that his conduct will cause such a result
1. person’s knowledge of a particular fact is established if:
a. either he is aware of such a fact, or aware of a high probability of such fact’s existence, unless he
actually believed that it didn’t exist

ii. Common Law

1. Intent = purposely & knowingly  doesn’t distinguish b/t purpose & knowledge
2. A person acts intentionally if either:
a. His conscious object when engaging in that conduct was for that result to follow, whatever the
likelihood of the result following his conduct (MPC purpose); OR
b. He was aware that it was practically certain that that result would follow from his conduct unless
he believed the result wouldn’t follow (MPC knowledge)
3. A person’s knowledge of a particular fact or attendant circumstance is determined by a subjective standard
under which one asks whether the person is aware of such fact or circumstance
iii. US v. Gypsum- D’s convicted of conspiracy to fix prices of gypsum board; jury instruction erroneous: "If the effect of the
exchanges of pricing information was to raise, fix, maintain and stabilize prices, then the parties to them are presumed,
as a matter of law, to have intended the result"
1. Reversed convictions
a. As a matter of law, it is not a legal presumption that because an event occurred as a result of an act,
and this result was a likely result, then the actor intended the act.
i. One knowingly causes result if one is aware (subjectively) that it is practically certain
(objectively) that his conduct would cause result.
iv. Transferred Intent
1. MPC – only transfer intent for “purpose”
a. When purposely…causing a particular result is an element of an offense, the element is…established
if…the actual result differs from that designed…only in the respect that a diff. person or property is
injured/affected
2. Common Law
a. Limited to results that create the same type of harm as was actually intended
b. Doesn’t require that the intended victim by the actual victim
c. Intent doesn’t transfer b/t crimes (Cunningham) w/exception of felony murder
v. HYPO
1. purposely want to kill someone on a plane so you place a bomb on the plane
2. Bomb goes off, everyone dies
3. Have purposely killed that individual
4. Didn't purposely kill everyone else, but had the practical certainty that placing the bomb on the plane would
kill them
5. Both types of culpability should be sufficient for liability
a. There isn't a great deal of difference b/t the two & they are often lumped together, rarely find
"purposely" alone in a statute without "knowingly"
vi. State v. Adkins- D convicted of receiving stolen property after having sold stolen items @ an auction; claimed he didn’t
know they were stolen; statute: have to know that the property is stolen and have the intent to deprive the true owner of
it (two types of culpability)
1. Affirmed
a. No specific result required (like in Gypsum), more related to the circumstances surrounding the
events
b. Intent & knowledge can be determined by surrounding circumstance
c. Objective test o/guilty knowledge: Whether a rationale jury could have found beyond a reasonable
doubt that a reasonable person in the circumstances of the defendant would have known that the
goods were stolen  common law
2. Court’s holding is opposite of the MPC  subjective test (gives D chance to explain that he’s not a reasonable
person
vii. HYPO
1. What if D had said "ok, you're right, a reasonable person might have known they were stolen but i'm an idiot"?
 a. Test is what would a reasonable person know and the fact that this person might not be a reasonable
person is irrelevant
2. What if D said that he answered the door and was so tired b/c he was out late, etc. and he wasn't in the correct
frame of mind to make him aware that the goods might be stolen?
a. Same result

c. Negligence & Recklessness

i. §2.02. General Requirements of Culpability

c. Recklessly
A person acts recklessly with respect to a material element of an offense when he consciously disregards a
substantial and unjustifiable risk that the material element exists or will result from this conduct. The risk
must be of such a nature and degree that, considering the nature and purpose of the actor’s conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a
law-abiding person would observe in the actor’s situation…
d. Negligently
A person acts negligently with respect to a material element of an offense when he should be aware of a
substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk
must be of such a nature and degree that the actor’s failure to perceive it, considering the nature and purpose
of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that
a reasonable person would observe in the actor’s situation

ii. What's the difference b/t civil negligence and criminal negligence?
1. Matter of degree
a. Degree of departure from standard of care
i. Gross deviation: criminal
ii. Any deviation from standard of care of reasonable person: civil negligence
b. The risk the actor fails to perceive must be of a greater magnitude for criminal negligence than
for civil negligence
iii. MPC "negligence" is really "criminal negligence"
1. "should be aware of a substantial and unjustifiable risk"
a. Question to ask re: Garris  Whether his conduct created a substantial risk of killing someone
i. YES- could have not only killed other people, but himself and driver
b. Need to look at surrounding facts and circumstances b/c same conduct in different
circumstances may not amount to criminal negligence
i. Doing this on a deserted street @ 3am wouldn't amount to a "substantial risk" of killing
someone- no one's around!
2. "Justifiable"- had D grabbed wheel to avoid hitting a group of children in the middle of the road, conduct
would've been justifiable
iv. Distinction b/t reckless and negligent conduct that the MPC makes is in the conscious disregard of the risk by the
reckless actor and failure to perceive the risk by the negligent actor
v. Santillanes- D convicted of child abuse for cutting nephew’s throat during an altercation; statute: Abuse of a child
consists of a person knowingly, intentionally or negligently and without justifiable cause, causing or permitting a child to
be: (1) Placed in a situation that may endanger the child's life or health
1. Affirmed but only b/c there was no reversible error (evidence established criminal negligence)
a. A criminal standard of negligence , which requires a substantial and unjustifiable risk, and a gross
deviation rather than a civil standard (which was in jury instructions), which only requires an
unreasonable risk and a deviation, is used in felony cases when no mens rea element is specified nor
is a standard of proof because the stakes are so high in felony cases
vi. Garris- D convicted of criminally negligent homicide for pulling steering wheel of car down and causing it to go off road,
hitting someone on sidewalk
1. Affirmed
a. Evidence established D's failure to perceive the substantial and unjustifiable risk that death would
result from his conduct
vii. Budish- D indicted for unlawfully burning structures when a strong wind picked up embers of his fire; statute: recklessly
sets fire to or burns or causes to be burned; indictment was dismissed
1. Affirmed
a. No evidence D acted recklessly- use subjective standard
i. MPC: he consciously disregards a substantial and unjustifiable risk
ii. CA penal code: aware of and consciously disregards a substantial and unjustifiable risk
viii. Leonardo- D charged w/1st degree assault for accidentally shooting girl when he was taking target practice @ a tree;
indictment was dismissed
1. Reversed
a. Can only dismiss indictment if the evidence isn’t legally sufficient to establish the charge or lesser
included offenses (same conduct & result but lower level of culpability)
i. Evidence established recklessness (culpability for lesser included offenses)
ii. To establish recklessness People must show:
1. D was "aware of and consciously disregarded" a risk that injury would occur
a. This is more difficult to establish
 2. That the risk was "substantial and unjustifiable"
a. Court finds that firing a gun in a community creates a substantial risk
3. That disregard of that risk is a "gross deviation from the standard of conduct that
a reasonable person would observe"
a. If D was aware of that risk & disregarded it, it would be a gross deviation

d. Strict Liability- always a presumption against strict liability unless there’s clear leg. intent for it
i. Factors to look @ when determining if offense should be construed as a strict liability crime
1. Seriousness of harm to society – more serious  S.L. likely
2. opportunity of actor to ascertain true facts – no opp.  S.L. likely
3. difficulty of proof of culpability – more difficult  S.L. likely
4. severity of penalty – more severe  not S.L.
5. felony v. misdemeanor/ violation – felony  not S.L.
6. Origin of the offense (statutory or common law) – statute  S.L. likely
ii. US v. Balint- D’s convicted of unlawfully selling opium derivative; argued statute didn’t make knowledge a requisite
element, therefore the fact that they didn’t even know it was a drug excuses them of liability; indictment dismissed
1. To determine strict liability applies (if culpability is left out of the statute):
a. Is the offense created by statute to be a public welfare offense (regulatory; malum prohibitum; protect
public from great harm) or was it created by common law (malum in se – theft – purpose is to punish)
b. Is the injustice of subjecting an innocent party greater than that of exposing the public to dangers
c. Do people have an opportunity to find out the facts of the offense
d. Did congress wish to make it easier for the state to prove their case, reduce the burden by removing
culpability
2. Court doesn’t look @ penalty of the offense, however
iii. Staples v. US- D convicted for possessing an unregistered machinegun; statute is silent on culpability; D claims he didn’t
know it was a machinegun (automatic)
1. Reverse & remand  faulty reasoning though
a. If no culpability was necessary, any ignorant gun owner (inherited a gun) would be liable
b. Court reads a mens rea requirement into the statute: Harsh penalty leads court to decide that
Legislature didn’t intend for it to be a strict liability offense
i. D needs to have the knowledge that he has a gun that needs to be registered or that has
characteristics that would subject it to regulation

iv. §1.04(1)
An offense defined by this Code or by any other statute of this State for which a sentence of [death or of] imprisonment is
authorized, constitutes a crime. Crimes are classified as felonies, misdemeanors or petty misdemeanors.

v. §1.04(5)
An offense defined by this Code or by an y other statute of this State constitutes a violation if it is so designated in this
Code or in the law defining the offense or if no other sentence than a fine, or fine and forfeiture or other civil
penalty is authorized upon conviction or if it is defined by a statute other than this Code which now provides that the
offense shall not constitute a crime. A violation does not constitute a crime and conviction of a violation shall not give
rise to any disability or legal disadvantage based on conviction of a criminal offense. …

vi. §2.05
(1) The requirements of culpability prescribed by Section 2.01 [voluntary act or omission] and 2.02 [purposeful,
knowing, reckless, or negligent conduct] do not apply to:
(a) offenses which constitute violations, unless the requirement involved is included in the definition of the
offense or the Court determines that is application is consistent with effective enforcement of the law defining the
offense; or
(b) Offenses defined by the statutes other than the Code, insofar as a legislative purpose to impose absolute
liability for such offenses or with respect to any material element thereof plainly appears.
(2) Notwithstanding any other provision of existing law and unless a subsequent statute otherwise provides:
(a) when absolute liability is imposed with respect to any material element of an offense defined by a statute
other than the Code and a conviction is based upon such liability, the offense constitutes a violation; and
(b) Although absolute liability is imposed by law with respect to one or more of the material elements of an
offense defined by a statute other than the Code, the culpable commission of the offense may be charged and
proved, in which event negligence with respect to such elements constitutes sufficient culpability.

e. Mistake of Fact

i. §2.04— Ignorance or Mistake.

1. Ignorance or mistake as to a matter of fact … is a defense if:
a. The ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense; or
b. The law provides that the state of mind established by such ignorance or mistake constitutes a
defense.
 2. Although ignorance or mistake would otherwise afford a defense to the offense charged, the defense is not
available if the defendant would be guilty of another offense had the situation been as he supposed. In
such case, however, the ignorance or mistake of the defendant shall reduce the grade and [class or] degree
of the offense of which he may be convicted to those of the offense of which he would be guilty had the
situation been as he supposed

3. Discards distinction b/t specific & general intent crimes  encourages each crime to be defined w/the
appropriate level of culpability

ii. Common Law

1. General intent crime  mistake must be honest & reasonable
2. Specific intent crime  mistake need only be an honest mistake that negates the required specific intent
3. Moral Wrong Theory: even if the facts were as D believed them to be, his act would still be immoral (example:
leaving pregnant wife  immoral to leave her at all, doesn’t matter if he knew she was pregnant or not)
4. Lesser Legal Wrong Theory: saying if someone is intending to commit a crime (fornication) and ends up
committing a more serious crime (statutory rape), he should be liable for the serious crime
a. Violates Cunnigham  no culpability in the statutory rape statute so court is taking culpability from
fornication statute & applying it to statutory rape  exactly what Cunningham said it couldn’t do
(take culpability from theft to offenses against persons)
iii. People v. Mayberry- D convicted of rape, kidnapping & assault; argued he thought she was consenting (she didn’t resist
or run due to fear & arthritic condition); jury instructions should’ve included mistake of fact
1. Reverse rape & kidnapping convictions
a. If the evidence shows that D reasonably believed she was consenting, it negates the criminal intent
necessary for rape & kidnapping
b. An objective & subjective belief must be present for mistake of fact
c. A mistake of fact can be a defense if it is both honest (genuine) and reasonable and that it
negatives the required criminal intent
iv. US v. Short- D convicted of assault w/intent to commit rape; argued he believed she was a hooker & had consented
1. Affirmed
a. There must be a “reasonable and honest belief” & an instruction that only includes an honest belief
isn’t accurate
2. DISSENT
a. General intent (rape)– crime is one particular act without reference of intent of a further act 
honest & reasonable belief that negatives intent needed for mistake of fact defense
b. Specific intent (assault w/intent to commit rape) – when the definition refers to defendant’s intent to
do some further act or achieve some additional consequence  honest belief that negatives intent
enough for mistake of fact
v. State v. Silva- D convicted of statutory rape; argued he reasonably and honestly believed she was 16+; should’ve gotten
mistake of fact instruction
1. Affirmed
a. Mistake of fact defense not allowed for statutory rape – judicial exception
i. Lesser Legal Wrong theory
ii. Moral Wrong theory
vi. Director of Public Prosecution v. Morgan- Morgan convicted of aiding & abetting a rape (can’t commit rape of own wife
under common law); other 3 Ds convicted of rape; they argue she consented
1. Affirm (change in jury instructions wouldn’t have changed outcome
a. A defendant cannot be convicted when he honest but unreasonable belief that there was consent 
intent needed for rape is the intent to have sex w/o consent, if there was a mistake re: consent, it goes
against the required intent
b. If it is reasonable from the surrounding facts and circumstances to come to a conclusion, supports the
belief that the defendant reached that conclusion.

f. Ignorance/Mistake of Law

i. §2.04 – Ignorance or Mistake

1. Ignorance or mistake as to a matter of law is a defense if
a. the ignorance or mistake negatives the purpose, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense
b. the law provides that the state of mind established by such ignorance or mistake constitutes a defense
2. although ignorance or mistake would otherwise afford a defense to the offenses charged, the defense is not
available if the defendant would be guilty of another offence had the situation been as he supposed. In
such case, however, the ignorance or mistake of the defendant shall reduce the grade and class or degree of
the offense of which he may be convicted to those of the offense of which he would be guilty had the situation
been as he supposed.
3. A belief that conduct does not legally constitute an offense is a defense when
a. the statute is not known to the actor and has not been published or otherwise reasonably made
available prior to the conduct
b. he acts in reasonable reliance upon an official statement of the law, afterward determined to be
invalid or erroneous, contained in
 i.
a statute
ii.
a judicial opinion, decision, or judgment
iii.
an administrative order or grant of permission
iv.An official interpretation of the public officer or body charged by law with the responsibility
for the interpretation, administration, or enforcement of the law defining the offense.
4. The defendant must prove a defense arising under subsection (3) by a preponderance of the evidence.

ii. Common Law

1. Defense only if the mistake negates the required intent of a specific intent crime
iii. Reasons behind not allowing mistake of law as a defense
1. Proving someone knew the law in order to establish mens rea would be next to impossible
2. If it were allowed as a defense, it would encourage people to be ignorant of the law
a. Easier to make a claim like this w/statutory crimes, as opposed to “i didn’t know it was illegal to shoot
someone”
3. Prosecutions provide education to the public re: the law
iv. State v. King- D convicted of unlawful possession of phentermine; wasn’t a controlled substance under state statute
(but was under federal law) until after she was arrested
1. Affirmed
their conduct but were mistaken as to its illegality
a. Ignorance of the law is no excuse – it was a controlled substance under federal law & she could’ve
found out
v. US v. Fuller- D convicted of distributing a controlled substance; argued he was doing an undercover operation & he
believed he had the power as mayor to sell crack as part of a sting operation (he didn’t have the intent needed)
1. Affirmed
a. Mistake of law not an excuse
i. Plus, SC law doesn’t give mayor any law enforcement power & expressly states that the
mayor is the chief administrative officer
vi. Hopkins v. State- D convicted of putting up illegal signs stating he performed weddings; argued he reasonably relied on
advice from lawyer that the signs didn’t violate the statute
1. Affirmed
a. Good faith reliance on advice of counsel isn’t an excuse – mistake of law is no excuse regardless
i. Why not? – D & lawyer could be in collusion
vii. State v. Woods- D convicted of violating statute that said it was a crime for a woman to found in bed w/a man who
wasn’t her husband; argued she honestly and reasonably they were legally married (had gone to Vegas and man got
divorce decree & then they got married)
1. Affirmed
a. Divorce decree from Vegas was invalid
i. Ignorance of law no defense
1. Under decision in Cude, however, it would seem that this is wrongly decided – she
would’ve needed to have intent to get in bed w/a man that wasn’t her husband &
that wasn’t the case (assuming she’s telling the truth)
viii. State v. Cude- D convicted of grand larceny for stealing his car back from the mechanic; argued he didn’t think he was
stealing since it was his car
1. Reversed
a. Mistake of law  allowed as defense b/c he intended to take his car, but he didn’t know that it wasn’t
his @ the time (title transferred to mechanic when it went in for repairs- civil law); he didn’t intend to
steal the car
i. Grand larceny requires taking with the intent to steal  his mistake negates the intent

g. Intoxication

i. §2.08 Intoxication
1. Except as provided in Subsection (4) of this Section, intoxication of the actor is not a defense unless it
negatives an element of the offense.
2. When recklessness establishes an element of the offense, if the actor, due to self-induced intoxication, is
unaware of a risk of which he would have been aware had he been sober, such unawareness is immaterial.
3. Intoxication does not, in itself, constitute mental disease within the meaning of Section 4.01…
4. Intoxication which (a) is not self induced or (b) is pathological is an affirmative defense if by reason of
such intoxication the actor at the time of his conduct lacks substantial capacity either to appreciate its
criminality (wrongfulness) or to conform his conduct to the requirements of law.
5. Definitions: In this Section unless a different meaning plainly is required:
a. “intoxication” means a disturbance of mental or physical capacities resulting from the
introduction of substances into the body…
b. “self induced intoxication” means intoxication caused by substances which the actor knowingly
introduces into his body, the tendency of which to cause intoxication he knows or ought to know,
unless he introduces them pursuant to medical advice or under such circumstances as would afford a
defense to charge a crime.
c. “Pathological intoxication” means intoxication grossly excessive in degree, given the amount of
the intoxicant, to which the actor does not know he is susceptible.
ii. Only allowed as potential defense for:
 1. MPC – offenses requiring purpose or knowledge as the level of culpability
a. Examples
i. Larceny- intoxication could be a defense b/c it states “taking with the intent to steal”
ii. Offense against the person- culpability required: intent to endanger or recklessly doing so;
awareness of the risk is a necessary part of recklessness, so why not allow intoxication as a
defense if he is unaware of the risk?
a. Person is aware that he/she may be creating risks the drunker and
drunker he gets- it’s the continuing to drink that’s the culpability
2. What if the culpability required was “negligently” endangering a life?
a. Wouldn’t be allowed as a defense either- negligence “should be aware of a
substantial and unjustifiable risk” and that would be determined by using
the reasonable person standard; a reasonable person wouldn’t have
become intoxicated to that point; by definition uses a “reasonable sober
person” standard
2. Common law – specific intent crimes; treated intoxication like a disease or defect
a. @ early common law- jury instructions properly excluded b/c intoxication not allowed as a defense
b. @ later common law- intoxication allowed as a defense to a specific intent crime- if it negates the
material element of the offense
iii. Bryant v. State- D convicted of attempted murder, statutory maiming, assault w/intent to disable & assault & battery;
argued b/c he was high on a mix of drugs & alcohol defense of intoxication should’ve been allowed for statutory maiming
& assault w/intent to disable
1. Reversed & remanded
a. Defense should have been allowed b/c the charges were specific intent crimes and if jury found that
intoxication negated the required intent, can’t find D guilty of the crime
iv. Montana v. Egelhoff- D convicted of 2 counts of deliberate homicide (purposely or knowingly causing the death of
another); had been out drinking w/the victims; argued that intoxication should be allowed as a defense b/c he was
physically incapable of committing the murder (too drunk)
1. Affirmed
a. Didn’t allow evidence of intoxication as a defense b/c it’s not uniformly accepted & common law
tradition of excluding it is still supported by valid justifications

V. Accomplice Liability
a. In General
Common Law
 Principal in the 1st degree – individ who personally commits
the crime or uses an innocent agent to commit the crime
o Innocent agent – someone who (1) commits a criminal
act but (2) lacks capacity to commit a crime or the mens
rea for the crime and (3) is fooled or forced to commit
the criminal act
 Principal in the 2nd degree – individ who intentionally helps
or encourages the principal in the 1st degree to commit the
crime and is actually present @ the crime scene or is
constructively present (near enough to assist if needed –
lookout; driver of getaway car)
 Accessory before the fact – aids & abets before the crime
takes place but isn’t present or nearby when it does occur
(obtains murder weapon; cases the store)
 Accessory after the fact – aids and abets after the crime (buys
plane tickets)
MPC
 Treats all actors, except those involved after the commission of the
crime as equal
 §2.06 – Liability for Conduct of Another; Complicity
o Before the crime principal
 Solicits another to commit a crime, which is then
committed by person solicited OR
 Aids, agrees or attempts to aid another in
planning a crime who then commits the crime OR
 Having a legal duty to prevent the commission of
the crime, fails to do so
o During the crime principal
 Personally commits the crime OR
 Uses an innocent or irresponsible person
 §242.3 – Hindering apprehension or prosecution
o After the crime
 Hinders apprehension or prosecution

i. Standefer v. US- D convicted of 5 counts of aiding and abetting a revenue official in accepting compensation; argued
that b/c official (principal) wasn’t convicted, he couldn’t be convicted as an accomplice based on common law rule
1. Affirmed
a. Statute superseded common law & legislative intent clear that statute meant to allow conviction
of accessories even if principal was acquitted
ii. Hicks v. US- D convicted of murder; principal was shot and killed by cops; “take your hat off and die like a man”
1. Reversed
a. Act or words must be done or said w/the purpose to aid and abet
b. If he went there and didn’t aid and abet, then he had intent, but didn’t do anything. No act. That is
insufficient for liability unless there is a prior conspiracy. (Act of simply being there is
encouragement and reinforcement in itself if there is a prior agreement).
 iii. Wilson v. People- D convicted of aiding and abetting burglary & larceny; argues he didn’t have the intent to commit
the offenses
1. reversed
a. “for one to be guilty as principal in the second degree, it’s essential that he share in the criminal
intent of the principal in the first degree”
i. D had intent to aid & abet (wanted principal to get caught) but didn’t have required
intent for burglary (breaking and entering w/the intent to commit a theft) or larceny
(intent to deprive the true owner of property)

b. Scope of Accomplice’s Liability

i. People v. Nguyen- D convicted of robbery & accessory to sexual assault
1. Affirmed
a. “common design” to commit a crime & an accomplice to that crime can be held liable for any
natural & probable (reasonably foreseeable) consequence
i. sexual assault was a reasonably foreseeable consequence of robbery (happens often)
ii. HYPO
1. agree ahead of time to commit armed robbery; B stands outside as a look out while A goes in to rob store,
owner of store tries to run, A shoots at owner & seriously wounds him
2. Is B liable for attempted murder, etc?- YES, reasonably foreseeable consequence
iii. HYPO
1. C agrees to be an accomplice to a crime (rob a store) by casing the store and reporting back to the other
accomplices but overnight changes his mind
2. Should he still be held liable? Should be “locked in” b/c he already rendered the aid?
a. Policy- NO but has to take further action beyond just decided not to go through w/it- call police,
try to stop the accomplices from going through w/it, take back whatever it was D did to aid &
abet
i. Gives D a way to opt out and avoid liability- “withdrawal
iv. MPC: not an accomplice if “he is a victim of that offense”
1. Silva- underage girl consented, therefore, aided and abetted in the commission of the crime- both victim &
accomplice
a. If held victims liable as accomplices, most likely wouldn’t be able to prosecute case b/c victim
won’t testify and incriminate herself
b. Also, doesn’t really seem fair to hold the victim of a crime liable

II. Criminal Homicide

Bold = common law Intended Killings: INTENT Unintended but Recklessly
Italics = MPC (premeditation, deliberate & Risked Killings
willfulness)
Murder INTENT RECKLESS (+)
Purposely & Knowingly Recklessness under circumstances
manifesting extreme indifference to
Malice Aforethought the value of human life

Depraved Heart
Manslaughter INTENT (-) RECKLESS
Extreme emotional or mental Reckless
disturbance
Culpable Negligence
Heat of passion
RECKLESS (-)
Criminal negligence

Culpable Negligence

a. Murder
i. Common Law  murder = unlawful killing of another human being w/malice aforethought, either express or
implied
1. criminal – murder & manslaughter
2. innocent – justifiable & excusable
a. today doesn’t matter what category it falls into, no liability for either

ii. § 210.0 Definitions

1. Human being means a person ho has been born and is alive
2. Bodily injury means physical pain, illness, or any impairment of physical condition
 3. Serious bodily injury means bodily injury which creates a substantial risk of death or which causes
serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member
or organ
4. Deadly weapon means any firearm, or other weapon , device, instrument, material or substance, whether
animate or inanimate, which in the manner it is used or is intended to be used is known to be capable of
producing death or serious bodily injury

iii. § 210.1 Criminal Homicide

1. A person is guilty of criminal homicide if he purposely, knowingly recklessly, or negligently causes the
death of another human being. (does not include intent to cause grievous bodily harm)
2. Criminal homicide is murder, manslaughter, or negligent homicide

iv. § 210.2. Murder

1. Except as provided in Section 210.3 (1)(b) [manslaughter] criminal homicide is murder when
a. It is committed purposely or knowingly, or
b. It is committed recklessly under circumstances manifesting extreme indifference to the value
of human life. Such 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 a robbery, rape, or deviate sexual intercourse by force or threat of force,
arson, burglary, kidnapping, or felonious escape.
2. Murder is a felony in the first degree.

v. Malice Aforethought – doesn’t require ill-will premeditation

1. Common Law: Malice aforethought – a term of art encompassing 4 different mental states, the presence
of any one which, in the absence of mitigating circumstances, will make an unlawful killing murder
2. MPC: abandons “malice aforethought”
3. People v. Morrin- intention to kill, actual or implied, under circumstances which don’t constitute excuse or
justification or mitigate the degree of the offense to manslaughter
4. Comber v. US – 4 types of malice aforethought
a. specific intent to kill  express malice
b. specific intent to inflict grievous bodily harm
c. wanton & willful disregard of an unreasonable human risk (intent to kill or injure unnecessary)-
depraved heart murder
Implied malice i. only exists where actor is subjectively aware his conduct created an extreme risk of
death or serious injury but engaged in it anyway
d. felony-murder: killing occurs in course of the intentional commission of a felony

5. Intent To Kill- conscious object or purpose was to cause death or knowingly that death was
practically certain as result of conduct
a. State v. Stanley- D convicted of murder for shooting victim; argues no proof beyond reasonable
doubt that he had intent to kill
i. Affirmed
1. Deadly weapon doctrine – use of deadly weapon on a vital part of another
may allow factfinder to infer there was an intent to kill
a. Can infer the intent to kill from the type of weapon used, the manner
in which it was used, the type of wounds it inflicted and the events
leading to and immediately following the death
i. Look @ how object was used, not what it’s inherent
nature is (baseball bat- not inherently dangerous
UNLESS used in a specific manner)
ii. Use to make inference as to actor’s subjective intent
b. HYPO
i. Go to liquor store, pull gun on clerk and say “this is a stick up, give me all the money or
i’ll kill you”
ii. Clerk reached under counter and pulls gun on robber
iii. Robber shoots clerk twice in chest, clerk dies
iv. Can Robber be guilty of murder?
1. YES- shooting someone in the chest, no matter in what situation, infers the
intent to kill
a. No need to go to felony murder b/c have inference of an intent to kill
via the deadly weapon doctrine exists

6. Intent To Cause Grievous Bodily Harm

a. Grievous bodily harm: is injury that creates a substantial risk of death or the causes
protracted disfigurement, protracted impairment of health, or loss or protracted
impairment of the function of any bodily member or organ
b. Commonwealth v. Sneed- D convicted of murder for death of baby
 i. Reversed
1. Both statute & common law state that for murder it must be grievous bodily
harm
a. If only intended to cause bodily harm & resulted in killing 
manslaughter
c. Anderson v. State- D convicted of murder for beating death
i. Affirmed
1. Acting w/the purpose to inflict serious bodily harm
a. “Serious” used instead of “grievous” but still intent to cause extreme
bodily harm
b. “Purpose”: conscious object to engage in conduct of that nature or
cause such a result.
d. NOTE: There is a great overlap between murder based on an intent to cause grievous bodily
harm and depraved heart murder because the mental state is very similar

7. Depraved Heart/Extreme Recklessness- actor recklessly killed under circumstances manifesting

extreme indifference to the value of human life
a. State v. Robinson- D convicted of depraved heart murder for hitting victim in head w/golf club
b. Alston v. State- gang shootout, victim was caught in cross-fire
i. Affirmed
1. Act in question must be committed under circumstances manifesting
extreme indifference to the value of human life
2. Engaged in conduct that created a very high risk of death or serious bodily
injury to others
c. It is an unintentional homicide in which the intent to kill is implied
i. The actor’s reckless conduct is imminently dangerous and creates a very
substantial risk of death (vs. the substantial risk needed for manslaughter.)
ii. The mental state for depraved heart murder is recklessness, and the circumstances
must objectively create a very substantial risk of death.
iii. Extreme Recklessness
1. A person subjectively knows of a risk and consciously disregards a very
substantial and unjustifiable risk that death will result from his conduct.
2. Subjective standard (but we can infer if a reasonable person would have been
aware of the risk, he should have was aware of the risk)

8. Felony Murder- death resulting from the commission of an inherently dangerous felony, wherein
such commission results in a high probability of death (examples: rape, armed robbery)
a. Common Law: all felonies were punishable by death so felony murder rule didn’t arise- doesn’t
matter if you killed someone during the commission of a felony, going to be put to death
regardless
b. ascribes malice aforethought to someone who kills accidentally during the commission of a
felony
i. implies intent, even though D may not have had the requisite intent to kill- opposite of
the holding in Cunningham
c. highly criticized: Legislatures have placed restrictions on the felony murder rule felony has to
be “inherently dangerous to human life”
d. People v. Hansen (CA)- D shot into what he thought was an unoccupied house & killed teen
i. Affirmed – Rudstein doesn’t agree w/this decision (no substantial risk if house is empty)
1. Looked @ elements of the felony in the abstract to determine if it’s
inherently dangerous to human life
a. “an inherently dangerous felony is one which by its very nature
cannot be committed w/o creating a substantial risk that someone
will be killed”
b. “inherently dangerous felony is an offense carrying a high
probability that death will result”
Common Law ii. DISSENT – confusing likelihood of people being present w/likelihood of death; if def. of
dwelling doesn’t require people to be present, then there can’t be a high probability that
death will result
1. Example – False imprisonment  felonious when accompanied by violence,
fraud, or deceit. Not inherently dangerous, because could be done with fraud
or deceit, which create almost no risk of death.
e. Ex Parte Mitchell- D convicted for shooting death that occurred when selling weed; argued
selling weed not inherently dangerous to life
i. Affirmed – Rudstein doesn’t really agree w/this one, not enough facts to know
1. Adopts factual approach – look @ the facts of the case to decide if the D
carried out the predicated felony in a way that was dangerous to human life
2.
f. Problems p.273
 i. Felony: possession of sawed-off shotgun
1. Majority of the time anyone who has a sawed-off shotgun, it’s there to be used
a. However, under CA (Hansen) rule, looking @ felony in the abstract,
possession of a sawed-off shotgun isn’t inherently dangerous to life
ii. Felony: false imprisonment
a. By violence- inherently dangerous, obviously
b. By menace- substantial possibility that it will result in violence
c. By fraud- not inherently dangerous
d. By deceit- not inherently dangerous
2. In the abstract- not inherently dangerous b/c there are instances when it can be
committed w/o any danger to another
a. What’s wrong w/this approach?
i. Wording of the statute lumps together various way in which felony
can be committed- 2 of which aren’t inherently dangerous
3. Factual approach- inherently dangerous; felony perpetrated by violence (placed gun
@ person’s neck)
iii. Felony: furnishing cocaine
1. Hansen rule- could sustain felony murder- comes close to Mitchell rule
a. statute here creates various crimes since it describes the selling, furnishing,
administering, giving away, or transporting, etc. etc
g. Barnett v. State- D killed man w/garden hoe; underlying felony – assault in 1st degree
i. Reversed
1. Merger doctrine: Can’t instruct on felony murder when it’s based on a felony
that’s directly resulted in or is an integral part of the homicide; elements of
the felony must be independent of the homicide (assault & battery)
a. Being able to prove murder by proving the intent element for assault
instead of the required mens rea for murder/manslaughter would
eliminate AL’s homicide laws & be contrary to legislative intent
b. Limits the scope of the felony murder rule
h. Rodriguez v. State- D convicted of felony murder as accomplice to attempted robbery (principal
executed victim but didn’t steal anything); argued murder was an independent act from robbery
i. Reversed
1. Evidence that the murder was separate independent act, didn’t occur in
the course of or the furtherance of the attempted robbery
i. People v. Lowery- D convicted of felony murder when victim of armed robbery (that he’d
attempted) shot @ him and accidentally killed a bystander; conviction was reversed
i. Reversed
1. Proximate cause of liability- liability attaches under felony murder rule for
any death proximately resulting from the unlawful activity
a. victim’s retaliation was a foreseeable consequence of the initial
criminal act
b. D put the events that led to the shooting into motion
2. Idea of legal safety: felony ends when D reaches a point of legal safety
3. Broad application of the felony murder rule (shooting wasn’t really in self-
defense, D was being chased by victim)
j. People v. Washington (CA, 1965)- D convicted of felony murder when accomplice was killed by
victim of their attempted robbery
i. Reversed
1. Agency theory: killing must be commited by felon or an accomplice b/c
otherwise it’s not committed in the perpetration of the felony
ii. Narrowed scope of felony murder rule
k. Taylor v. Superior Court of Alameda Co. (CA, 1970)- D convicted of felony murder when
accomplice was killed by victim of their attempted robbery; same as Washington
i. Affirmed
1. How did they distinguish Washington?
a. All Washington decided was that for the felony murder rule to
apply, it has to be one of the felons that fired the fatal shot (D is right
in that he can’t be found guilty under the felony murder rule)
2. Court isn’t relying on the felony murder rule- relying on depraved heart
murder to find that D had malice aforethought
a. Where do they find the malice aforethought that shows a conscious
disregard of a substantial risk of death or grievous bodily harm?
i. Provoking the “gun battle”- don’t have to fire the first shot
to initiate the gun battle
 ii. D is liable through accomplice/vicarious liability b/c it was
his accomplice that initiated the gun fight

vi. Degrees of Murder: Premeditation & Deliberation

1. Common Law: there weren’t degrees of murder
a. why?- all felonies were punishable by death, therefore, there was no need to distinguish between
degrees of murder b/c they’re all felonies
b. why did PA install degrees (1st to do so)?- trying to change the punishment associated w/types
of killings
i. not all killings equal- intentional worse than unintentional
2. Modern view
a. Assumed to be 2nd degree murder unless prosecutor proves beyond a reasonable doubt that it
was 1st
b. 1st degree murder
i. committed during the commission of certain felonies (robbery, arson, kidnapping &
sexual assault)
ii. perpetrated by a specified means (poison, lying in wait, or torture)
iii. perpetrated by any other kind of willful, deliberate and premeditated killing
3. Commonwealth v. Carroll – D convicted of 1st degree murder for shotting sleeping wife twice in the back
of the head; argued evidence was insufficient to show premeditation (2nd degree murder)
a. Affirmed
i. Very obvious to court that this was a deliberate killing Equate premeditation,
deliberation & willfulness with an intent to kill- that’s all that’s necessary for 1st
degree murder
ii. Premeditation can happen in an instant
4. State v. Brown- D convicted of 1st degree murder for death of 4yr old resulting from repeated blows to the
head; argued evidence insufficient to show required premeditation & deliberation
a. Reduced to 2nd degree murder – evidence only shows D assaulted child in heat of passion/anger;
no premeditation or deliberation
i. Wilfully– w/the purpose/intent that that the act by which the life of a party is taken
should have that effect
ii. Deliberately – w/cool purpose; reflecting on decision to kill  can’t be formed in
an instant
iii. Maliciously – w/malice aforethought
iv. Premeditation – a design must be formed to kill, b/4 the act by which the death
produced, is performed  more than a split-second is needed to constitute
premeditation
b. Deliberation & premeditation must be present for 1st degree murder – they aren’t
interchangeable
5. People v. Anderson – D convicted for stabbing death of young girl not found to be premeditated – takes
same approach as Brown court
a. willful, deliberate and premeditated means there must be a preexisting reflection, actual
deliberation, careful thought and weighing of considerations, as a deliberate judgment or plan,
carried out coolly and steadily according to a preconceived design
b. deliberation & premeditation can be shown thru circumstantial evidence
i. 3 categories of the type of evidence sufficient to sustain a finding of premeditation and
deliberation
1. planning activity: How & what the D did prior to the killing
2. motive: Facts about the D’s prior relationship and/or conduct w/the victim
3. manner of killing: Facts about the nature of the killing from which the jury
could infer that the manner of the killing was so particular and exacting that
the D must’ve intentionally killed according to a preconceived design
ii. to sustain 1st degree murder conviction w/circumstantial evidence, there has to be
either:
1. evidence of all 3 types;
2. extremely strong evidence of planning activity; or
3. evidence of motive in conjunction w/evidence of either planning activity or a
particular and exacting manner of killing

b. Manslaughter

i. §210.3 Manslaughter
1. Criminal homicide constitutes manslaughter when:
b. A homicide which would otherwise be murder is committed under the influence of extreme
mental or emotional disturbance for which there is reasonable explanation or excuse. The
reasonableness of such explanation or excuse shall be determined from the viewpoint of a person
in the actor’s situation under the circumstances as he believes them to be
 2. Manslaughter is a felony of the 2nd degree

3. Abandoned any distinctions b/t the types (vol/invol)

ii. Common Law

1. Any criminal homicide committed w/o malice aforethought is manslaughter
2. Separated it into voluntary & involuntary manslaughter
3. Voluntary Manslaughter – intentional criminal homicide that would be murder except for the presence
of mitigating circumstances
a. Mitigating circumstances
i. Heat of passion manslaughter

iii. “Heat of Passion” Voluntary Manslaughter

1. How are vol. manslaughter, 1st & 2nd degree murder similar?
a. Intent to kill is necessary for all three
2. Why is the intent to kill not enough to make manslaughter murder?
a. No malice aforethought
b. An element of provocation
3. Manslaughter requirements
a. Committed in heat of passion – loss of self-control, emotions are so intense they distort actor’s
practical reasoning
b. Provocation
i. Common law – provocation had to fit into defined categories otherwise provocation
wasn’t adequate (mere words never enough)
1. Finding one’s spouse having sex w/another
2. Mutual combat
3. Assault & battery
ii. Modern view – provocation that would cause a reasonable person to lose control
1. if no reasonable person could find the provocation to be adequate, judge may
exclude evidence of provocation
2. words (informative or mere insults) may constitute legally adequate
provocation
a. informative - Words that fit into the categories defined as sufficient
for adequate provocation – being told is one step removed from
actual conduct that fits into the category
c. No cooling off period
d. Causal connection b/t provocation, heat of passion & killing
4. Vol. manslaughter is a lesser crime than murder b/c the courts understand that there are certain
situations that may arouse such intense emotions in a person that they are unable to act rationale & those
people should be treated differently from the one that takes the time out to plan a murder

5. People v. Pouncey- D convicted of 2nd degree murder for shooting victim after argument re: theft of a car;
conviction reversed b/c vol. manslaughter intruction should’ve been given
a. Reversed
i. 3 components of vol. manslaughter
1. D must kill in heat of passion
a. Emotions must be so intense that they distort D’s reasoning
i. D stated that he wasn’t angry when he went inside the
house & got the gun
2. Passion must be caused by adequate provocation
a. Must be of a nature that it’s a cause a reasonable person to lose
control
i. Mere word don’t constitute adequate provocation
ii. “informative words” have been found to
constitute adequate provocation
iii. Words that fit into the categories defined as
sufficient for adequate provocation (p.327)- being
told is one step removed form actual conduct that
fits into the category
3. There can’t be any lapse in time during which a reasonable person could
control his passion
a. Enough time passed b/t time that D went into house & came back out
w/the gun to constitute a cooling period
6. Girouard v. State- D stabbed wife 16 times & convicted of 2nd degree murder
 a. Affirmed – mere words not enough for adequate provocation; takes common law approach 
there are certain well-defined categories of provocation
7. People v. Sullivan- D convicted of 1st degree murder for stabbing death of his wife
a. Affirmed – provocation wasn’t adequate to cause a reasonable person to lose control (mental
qualities of the D are irrelevant in determining the adequacy of the provocation)

iv. Involuntary Manslaughter

1. In General
a. common law- criminal negligence (gross, culpable negligence) was necessary for invol.
manslaughter
b. MPC- elevated the culpability necessary to “recklessly” committing homicide
i. What’s the problem w/the MPC elevating it to “recklessly”?
1. Blurs line b/t invol. manslaughter & depraved heart murder
2. What gap is left under MPC b/c of this elevation?
a. No liability for manslaughter if only criminal negligent
ii. Eliminate this gap by creating “negligent homicide”

c. §210.3 Manslaughter
1. Criminal homicide constitutes manslaughter when
a. It is committed recklessly
2. Manslaughter is a felony in the 2nd degree

d. §210.4 Negligent Homicide

1. Criminal homicide constitutes negligent homicide when it is committed negligently
2. Negligent homicide is a felony of the 3rd degree

2. Criminal Negligence or Recklessness

a. State v. Davis- D convicted of invol. manslaughter b/c of accidental drowning of her 2yr old
i. Reversed
1. No evidence of criminal negligence
a. Criminal negligence: “when a man of ordinary prudence would
foresee that the act would cause a high degree of risk of death or
great bodily harm”  same as MPC
2. Def. of invol. manslaughter: unlawful killing of another without malice, either
express or implied, that occurs in the commission of some unlawful act

3. Unlawful Act
a. Common law rule that a charge of involuntary manslaughter for a homicide committed without
malice aforethought, that is neither justified not excused if a killing occurs during the commission
of an unlawful act (such as battery, assault, speeding etc.)
i. Must be a causal relation between the violation and the death
1. Malum Prohibitum conduct: Look to whether the prohibited aspect of the
conduct actually caused the death, and if it was a natural of foreseeable
consequence. (failing to renew driver’s license, then runs over a pedestrian)
2. Malum in Se Conduct: the unlawfulness adheres to the entirety of the act. Look
to whether there was but-for causation
ii. allows an unlawful act to be the basis of invol. manslaughter conviction even if conduct
didn’t create any perceptible risk of death
b. MPC has eliminated unlawful act manslaughter & requires criminal negligence (substantial risk
of death)
c. State v. Pray- D convicted of manslaughter after hitting victim causing him to fall & crack head
on pavement
i. Reversed – instructions for invol. manslaughter shouldn’t have been given, they were
wrong
1. Common law rule no longer applicable

III. Causation
a. §2.03 Causal Relationship between Conduct & Result
1. Conduct is the cause of a result when:
a. It is an antecedent but for which the result in question wouldn’t have occurred; and
b. The relationship b/t the conduct and the result satisfies any additional causal requirements imposed by
the Code or by the law defining the offense.
 2. When purposely or knowingly causing a particular result is an element of an offense, the element is not established
if the actual result is not within the purpose or contemplation of the actor unless:
a. The actual result differs from that designed or contemplated, as the case may be, only in the respect that a
different person or different property is injured or affected or that the injury or harm designed or
contemplated would have been more serious or more extensive than that caused; or
b. The actual result involves the same kind of injury or harm as that designed or contemplated and isn’t too
remote or accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of
the offense.
3. When recklessly or negligently causing a particular result is an element of an offense, the element isn’t establishes if
the actual result isn’t with the risk of which the actor is aware, or in the case of negligence, of which he should be
aware unless:
a. The actual result differs from the probable result only in the respect that a different person or different
property is injured or affected or that the probable injury or harm would have been more serious or more
extensive than that caused; or
b. The actual result involves the same kind of injury or harm as the probable result and isn’t too remote or
accidental in its occurrence to have a [just] bearing on the actor’s liability or on the gravity of the offense.
4. When causing a particular result is a material element of an offense for which absolute liability is imposed by law,
the element isn’t established unless the actual result is a probable consequence of the actor’s conduct

b. In most cases, causation isn’t going be an issue

c. There are some cases where there will be: D’s conduct  intervening act (direct cause) death
i. Legal Cause = cause in fact + proximate cause
1. First need to determine factual causation
a. Use “but for” test
i. There can be hundred of factual causes
b. Was the D a cause in fact of the death?
i. If NO- ends here
ii. If YES- look @ proximate cause
2. Second: proximate cause  foreseeability test
a. needs to be closely related enough to the death to hold a D liable
b. intervening causes
i. independent intervening cause (coincidence)– force that doesn’t occur in response
or reaction to the actor’s conduct; D’s act merely places victim @ a certain place @ a
certain time, thus subjecting victim to the intervening cause
1. breaks causal chain unless it was foreseeable (i.e. doesn’t break if it’s
unforeseeable)
ii. dependent intervening cause (response)– force that occurs in reaction or response to
the actor’s initial conduct; reaction to the condition created by D
1. doesn’t break causal chain unless it was highly abnormal or bizarre and
unforeseeable
d. State v. Rose- D convicted of manslaughter for hit & run death
i. Reversed - Rudstein doesn’t agree w/this holding
1. Evidence didn’t establish proof beyond a reasonable doubt
a. Court found that there was no evidence of criminal negligence by D up to & including the time
that victim was hit by D’s car, therefore:
i. If victim was dead before D drove off, his criminal negligence has nothing to do with the
death  Requirement that the actual culpability of the actor to have caused the
death
e. Eversley v. State- D convicted of manslaughter for death of baby (rare form of pneumonia)
i. Reversed
1. “but for” test of cause in fact causation should’ve been used
a. “substantial factor” test should only be used when 2 independently sufficient causes combine to
cause the death  “but for” test is impossible in this case
i. there weren’t 2 independently sufficient causes operating together in this case
2. evidence didn’t prove beyond a reasonable doubt that but-for D’s failure to render aid the baby wouldn’t
have died
a. holds that this doesn’t constitute criminal negligence so causation issue is irrelevant anyway
f. McKinnon v. US- D convicted of 1st degree murder (slashed victims throat but she died from complications form aid given @
hospital to treat neck wound)
i. Affirmed
1. Foreseeability test – D criminally liable for all harms that are reasonably foreseeable consequences of his
conduct
a. Wound  medical treatment obviously necessary (blood transfusions part of treatment) 
hepatitis is small, but potential risk from blood transfusions
 g. State v. Smith- D convicted of invol. manslaughter: Punched victim in head  victim fell and hit head on concrete  causes
skull fracture & other brain injuries  caused damage to frontal lobes  adversely affected victims ability to take care of
himself  didn’t take insulin  died of diabetic ketoacidosis; argued unforeseen intervening events, therefore his conduct
not a proximate cause of the death
i. Affirmed
1. court determines that victim’s inability to take care of himself (alleged intervening cause) was a response
to D’s conduct (not a coincidence, which would break causal chain and excuse D from liability if it was
abnormal & unforeseeable)
a. D doesn’t need to be aware of the exact consequences of his conduct, just as long as the result is w/i
the natural and logical scope of risk created

IV. Justification & Excuses

a. Self Defense
i. Common Law –
1. justified in using a reasonable amount of force to defend himself when he actually and reasonably believes
such force is necessary to prevent the use of imminent unlawful force against him
a. Can only use deadly force if there’s an actual and reasonable belief that it’s necessary to prevent
imminent death or grievous bodily harm
b. Most states have adopted the common law definition for self-defense
2. No duty to retreat before using force, even deadly force
3. Not available if D was aggressor
ii. MPC –
1. doesn’t include “honest & reasonable” belief
2. deadly force justified to protect against death, serious bodily injury, kidnapping or sexual intercourse
compelled by force or threat
3. duty to retreat before using deadly force if retreat is possible in complete safety
a. Exception: castle doctrine – no duty to retreat before using deadly force if attacked @ home or
work
iii. Use subjective standard to determine reasonableness of D’s belief
1. Look @ circumstances from D’s point of view to determine if they were sufficient to induce in D an honest
and reasonable belief that he had to use force to defend himself against imminent unlawful force
a. Factfinder can consider D’s unique mental and physical characteristics in determining the
reasonableness of his beliefs
iv. People v. Goetz- D indicted for attempted murder after shooting 4 teens on subway; charges were dismissed
1. Reversed (charged reinstated)
a. Objective perspective used to analyze reasonableness of D’s belief that use of force is necessary
i. “a person may…use physical force upon another person when and to the extent he
reasonably believes such to be necessary to defend himself or a third person from
what he reasonably believes to be the use or imminent use of unlawful physical force
by such other person”
v. Culverson v. State- D convicted of 1st degree murder for shooting victim; argued duty to retreat shouldn’t have
been part of jury instructions
1. Reversed
a. No duty to retreat if reasonable person in D’s position would believe assailant about to kill or
cause serious bodily harm to him
2. DISSENT
a. Impose duty to retreat only if retreat is possible in complete safety
vi. State v. Golson- D convicted of 2nd degree attempted murder of his wife; argued evidence was insufficient to prove
he wasn’t acting in self-defense
1. Affirmed
a. Force used was unreasonable in the circumstances and not necessary to prevent an imminent
assault
vii. Swann v. US- D convicted of 1st degree murder for shooting victim; argued vol. manslaughter instruction based on
imperfect self-defense should’ve been given
1. Affirmed- failure to instruct on lesser included offense was harmless b/c mitigation claim (imperfect self-
defense) can’t co-exist w/jury’s finding of premeditation
a. Self defense:
i. D must have an actual belief both that he’s in imminent danger of serious bodily harm
or death & in the need to use deadly force in order to save himself
ii. In addition to such an actual belief, D’s belief must be objectively reasonable
b. Imperfect self-defense:
i. jury may conclude that D’s belief that he was in imminent danger and that he had to use
deadly force was in fact actually and honestly held BUT was in one or both respects
 objectively unreasonable  liable for vol. manslaughter instead of murder (not available
@ common law)
viii. State v. Davis- D convicted of felony murder (shot man when trying to break into the house)
1. Reversed- but NOT on self-defense claim b/c of failure to instruct on lesser included offense
a. For self-defense: D has to show his conduct was “what a reasonably cautious and prudent person
in similar circumstances would’ve done and he reasonably believed he was in danger of bodily
harm”
i. Defense is unavailable if D’s actions precipitated or provoked the altercation that
required the use of force
ix. State v. Mayberry- D convicted of 2nd degree murder for stabbing victim to death; Argued there was error by
including “w/o felonious intent” in the self-defense instructions b/c it narrowed the scope
1. Reversed
a. Instructions erroneously prejudicial  jury could’ve believed that self-defense wasn’t available
to D if he got into the situation w/felonious intent
i. D attempted to withdraw in good faith
1. So, even if he had started/entered the altercation w/felonious intent his
right to self-defense is revived upon withdrawal being made
a. Withdrawal = abandonment of the struggle that’s perceived by the
other party

b. Defense of Another
i. MPC – 3 conditions need to be met for defense of another
1. Actor would be justified in using such force to protect himself against he injury he believes to be
threatened to the other person
2. Under the circumstances as the actor believes them to be, the person whom he seeks to protect would be
justified in using such protective force
3. Actor believes that his intervention is necessary for the protection of the other person
ii. State v. Beeley- D convicted of simple assault for punching guy in face once
1. Reversed
a. Rejected the alter ego rule used by lower court  objective standard (common law)
i. the right to defend another is dependent on that person’s right to defend themselves
b. followed MPC rule
i. defense of another is a justification if D reasonably believes that the person is being
unlawfully attacked

c. Duress
i. Common law – not available for any intentional killing
1. Rule for defense of duress
a. D must demonstrate that his criminal conduct was the product of an unlawful threat that
caused him reasonably to believe that performing the criminal conduct was his only
reasonably opportunity to avoid imminent death or serious bodily harm, either to himself
or to another
b. Can’t rely on this defense if he had reasonable opportunity to “both refuse to do the criminal act
and also to avoid the threatened harm”
ii. MPC –
1. Affirmative defense that the actor engaged in the conduct b/c he was coerced to do so by use of, or threat
to use, unlawful force against his person or the person of another, which a person of reasonable firmness
in his situation would’ve been unable to resist
2. Unavailable if actor recklessly or negligently put himself in the situation
iii. Daung Sam v. Commonwealth- D convicted of murder; argued defense of duress can be based on threats to family
members
1. Affirmed
a. Defense of duress can be based on threats to family BUT D had a chance to stop his participation
in the crimes & warn his family but failed to do so, therefore, defense of duress is unavailable to
him
b.
iv. People v. Anderson- D convicted of 1st degree murder & kidnapping; argued instruction on defense of duress
should’ve been given
1. Affirmed
a. Defense of duress isn’t available for murder
i. Never was @ common law & isn’t by statute
ii. Conflicts w/the rationale behind the defense of duress: “it’s better that the D faced with
a choice of evils, choose to do the lesser evil (violate criminal law) in order to avoid the
greater evil threatened by the other person”
 1. The resulting harm in murder committed under duress (death of an innocent
person) is @ least as great as the threatened harm (death of D)

d. Necessity
i. Elements of the defense
1. that there is no 3rd and legal alternative available
2. that the harm to be prevented was imminent
3. that a direct causal relationship may be reasonable anticipated to exist b/t D’s action and the avoidance of
the harm
ii. State v. Messler- D convicted of speeding b/c he sped up to get out of trooper’s way
1. Reversed
a. Evidence to support the defense of necessity, therefore, instruction should’ve been given