I) Burden of Proof

a) Winship doctrine – Burden of proof beyond a reasonable doubt, with respect to each material element
of the crime, will always lie with prosecution
i) Rooted in American social value of “innocent until proven guilty” (presumption of innocence) –
“better to let 10 guilty men go free than convict one innocent man”
b) Types of burdens of proof
i) Burden of production – burden of raising an issue through the introduction of evidence
(1) Prosecution
(a) Must prove beyond a reasonable doubt with respect to each material element of the crime
(b) Failure to meet burden will result in a directed verdict in favor of defendant (if prosecution’s
case raises a reasonable doubt about guilt as a matter of law, judge has authority to
discontinue trial by directing verdict)
(2) Defense (with regards to affirmative defenses)
(a) In some jurisdictions, must provide more than a “mere scintilla” of evidence to meet burden
(b) In some jurisdictions, must provide enough evidence to raise a reasonable doubt
(c) Failure to meet burden will result in a denial of appropriate jury instructions regarding
availability of defense
ii) Burden of persuasion – burden of convincing the trier of fact (usually the jury) of the correctness of
one’s particular claim
(1) Prosecution
(a) Must prove beyond a reasonable doubt with respect to each material element of the crime
(2) Defense (with respect to affirmative defenses)
(a) If statute provides, must prove by a preponderance of evidence (Patterson)
(i) Then prosecution must rebut by disproving beyond a reasonable doubt
c) Model Penal Code
i) Prosecution
(1) Burden of production – must prove beyond a reasonable doubt for each element of an offense
(2) Burden of persuasion – must prove beyond a reasonable doubt for each material element of an
offense
(a) “Element” defined to include conduct which negatives an excuse or justification – so
prosecution has burden of disproving affirmative defenses once the defendant has met his
burden of production
ii) Defendant (with regards to affirmative defenses)
(1) Burden of production – must produce evidence in support (how much is unspecified by Code)
(2) Burden of persuasion – no burden of persuasion, unless specified (Code allocates this burden
to the prosecution once the burden of production has been met)

Concept Common Law MPC

⮚ Prosecution – Must prove ⮚ Prosecution – must prove beyond a
beyond a reasonable doubt for reasonable doubt for each material
each element of crime element of crime
⮚ Defendant (affirmative
defenses) – Must prove by….
Burden of
Burden of ⮚ More than mere scintilla of ⮚ Defendant (affirmative defenses) –
Production
Proof evidence (in some Must produce evidence in support
jurisdictions); or ⮚ MPC does not specify weight of
⮚ Enough evidence to raise burden (leaving it up to courts)
reasonable doubt (in some
jurisdictions

1
 ⮚ Prosecution – Must prove
beyond a reasonable doubt for
each element of crime
⮚ Affirmative defenses – may
be required to disprove
beyond a reasonable doubt
(in some jurisdictions)
Burden of ⮚ If defendant must prove by
Persuasion preponderance of evidence
(in some jurisdictions), then
prosecution must disprove
beyond a reasonable doubt
⮚ Defendant (affirmative
defenses) – May be required to
prove by a preponderance of
evidence (if statute requires
⮚ Prosecution – Must prove beyond a
reasonable doubt for each element of
crime (including affirmative defenses)
⮚ MPC defines element to include
conduct which would negative an
excuse of justification
⮚ Defendant (affirmative defenses) –
no allocation of burden unless the
Code or statute expressly allocates
burden to defendant

II) Role of Jury

a) Duncan v Louisiana – Right to jury trial in all criminal cases
i) Defendant charged with simple battery (punishable by fine and up to two years imprisonment)
ii) Defendant denied jury trial under rationale that jury trials reserved for capital punishment or hard
labor punishment offenses
iii) On appeal to Supreme Court
(1) Held that right to jury trial was a Constitutionally protected right in all criminal cases
b) United States v Dougherty – Instructions on jury’s powers of nullification are not required to be given
i) Defendants’ request for instruction to jury regarding jury’s power of nullification was denied
(1) Nullification power derived from jury’s ability to bring “not guilty” verdict (prosecution unable to
seek appeal on “not guilty verdict”) compounded with protection of accused under “double
jeopardy” clause
(a) Means of social protest regarding the validity of a particular law or protest against the
applicability of good law to a certain person
ii) Supreme Court
(1) Held that there is no requirement to instruct jury on nullification power
(a) Risk of anarchy (articulation of jury’s power may lead to abuse of it
(b) Undue burden on jurors to expect them to become mini-legislators
III) Justifications for Punishment
a) Utilitarian – law used to maximize the net happiness of society (proactive justification)
i) General deterrence – punishment of a criminal will deter others from engaging in similar conduct in
the future
ii) Specific deterrence – punishment of criminal will deter him from engaging in similar conduct in the
future
(1) Incapacitation – imprisonment will prevent him from committing additional harm
(2) Intimidation – previous punishment will deter criminal from future misconduct (does not want to
experience more pain)
b) Retributivist – punishment justified when criminal deserves it (retroactive justification)
i) Assaultive retribution – criminal has hurt society so society should hurt him back
ii) Protective retribution – criminal punishment will restore balance of law-abiding majority who
shoulder the burden of self-restraint
iii) Victim vindication – criminal’s harming of victim is essentially a message that criminal is superior to
victim; punishment is a means of restoring victim’s equal worth as a human being

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IV) Criminal Culpability
a) Actus Reus – person cannot be held culpable unless conduct included a voluntary act
i) Positive Actions – to hold culpable, there must be some form of voluntary act
(1) Rationale
(a) Utilitarian (insufficient) – cannot effectively deter someone if their actions are involuntary (i.e.
not a product of their own volition)
(i) But can motivate one to adjust behavior accordingly if there is a history of involuntary
actions
(b) Retributivist – punishment is unjust if actor was not voluntarily engaging in criminal conduct
(reflection of society’s value of autonomy and free will)
(i) Punishment should only be imposed on those who deserve it
(2) Voluntary act is an element of any crime (burden of proof lies with prosecution to prove beyond
a reasonable doubt)
(3) Time-framing
(a) Conduct must be proximate cause of harm caused; once it is determined which conduct
satisfies this requirement, must determine whether conduct includes a voluntary act
(4) Cases
(a) Martin v State – every criminal statute must presuppose a voluntary act
(b) People v Newton – acts done while unconscious cannot be held criminally culpable since
they were involuntary
(i) Mrs. Cogdon’s (sleepwalking) case – conduct while sleepwalking was held to be
unconscious conduct
(ii) People v Decina – when there was a prior history of epileptic seizures, defendant held
liable for deaths from an accident occurring as a result of a seizure (reckless – knew of
risk but disregarded it)
(5) Model Penal Code
(a) Liability of actor is based on a voluntary act or omission
(b) Involuntary acts:
(i) Reflex or convulsion
(ii) Bodily movement while unconscious or asleep
(iii) Conduct arising under or from hypnosis
(iv) Bodily movement that is not a product of effort or determination of actor (unconscious or
habitual)
(c) Possession is considered a voluntary act if
(i) Acquired knowingly, or
(ii) Aware of control for a sufficient period of time such that actor could have gotten rid of it
ii) Omissions – to hold culpable, must show a failure in a legal duty as a result of the omission
(1) GENERAL RULE: Subject to a few exceptions, a person has no criminal law duty to act to
prevent harm to another
(a) Rationale
(i) Allowing people to be held criminally liable for their “not-doings” would lead to an
exponential increase in criminal prosecutions
(ii) Line-drawing in who to prosecute
(iii) Liability for non-actions would create problems in proof of mens rea
(b) Duty to act
(i) Contract for care (i.e. doctor to patient)
(ii) Special status relationship (i.e. parent to child, husband to wife)
(iii) Creation of risk
(iv) Voluntary commencement of assistance such that person in jeopardy develops a
reliance
(v) Statutorily imposed (i.e. “Bad Samaritan” laws)
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 (c) Medical Omissions – physician’s removal of life-sustaining equipment for comatose patient
was considered an omission, but not held criminally liable (Barber)
(i) Physician’s legal duty is to provide ordinary care (once treatment becomes ineffective,
physician is under no duty to continue providing treatment)
(2) Model Penal Code
(a) Omission liability requires:
(i) Statute providing for omission liability; or
(ii) Failure in acting according to duty imposed by law
iii) Actus Reus Cases
(1) Pope v State – when defendant had taken in mother and child for the weekend out of goodness
of her heart, defendant not held liable for failing to secure aid for child who died as a result of
massive abuse by mother (moral obligation is not a criminal obligation
(2) Jones v United States – requirement of legal duty in order to impose liability for an omission
(failure to provide nourishment to child under defendant’s care where there were questions as to
whether there existed a contractual relationship between defendant and mother to provide care
for child)
(a) Identified 4 categories of legal duties that would give rise to omission liability: 1) where
statute imposes duty to care for another; 2) where one stands in a certain status
relationship; 3) where one has assumed a contractual duty to care for another; & 4) where
on has voluntarily assumed care of another and so secluded the helpless person as to
prevent others from rendering aid
(b) Added 1 more category to the 4 previously identified in Jones v United States: creation of
unreasonable risk/peril
(3) Commonwelath v Cardwell – where mother knew of stepfather’s sexual abuse of daughter,
mother’s actions (wrote 2 letters to stepfather stating awareness of sexual abuse, transfer of
daughter from one school to another, moving of her and daughter’s clothes to defendant’s
mother’s house) were found to be insufficient to relieve daughter’s abuse so mother failed in her
duty
(a) Steps taken to alleviate harm must be reasonably calculated to achieve success; otherwise
omission liability still applies
(4) People v Beardsley – where defendant had taken woman to his house for the weekend, he was
not under a duty to provide care for her when she overdosed on morphine so there was no
omission liability bc no legal duty--no special relationships bc lady was his mistress not wife

Concept Common Law MPC

⮚ P must prove that D acted voluntarily
⮚ Possession is considered a voluntary
act if the actor…
Voluntary ⮚ P must prove that D acted
⮚ Knowingly acquired; or
Act voluntarily
⮚ Was aware of control for long
enough to have dispossessed
himself of the item
Actus ⮚ For omission liability, it must be
Reus shown that the D had a legal duty
⮚ For omission liability, it must be
to act and failed to act accordingly
shown that there is…
⮚ Legal duty to act when
⮚ Statute specifying omission liability;
Omission ⮚ Statute defines legal duty
or
⮚ Status relationship
⮚ Failure on actor’s part to act
⮚ Contract for care
according to legally imposed duty
⮚ Voluntarily assumed duty of
care
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b) Mens Rea – to hold culpable, there must be the guilty mind (along with the guilty act)
i) Frequently used mens rea terms
(1) Intentionally – harm is the actor’s desire and he acts with the knowledge that the harm is
virtually certain to occur as a result of his conduct
(a) Distinguished from “motive”
(i) Can have a motive different from intentional conduct (e.g. doctor who wishes to put
patient out of his misery (motive) may give the patient a lethal dose of medication
(intentional act))
(ii) Relevance to criminal law
1. Some offenses require the proving of a specific motive (i.e. specific intent crimes)
2. Relevant to defense and can lead to an acquittal (i.e. justified conduct)
3. Relevant in sentencing (e.g. can impose higher punishment for hate crimes)
(b) Transferred intent – if D intends to kill V1, shoots at V1 but misses and kills V2 instead, the
court may find that the intent to kill was transferred from V1 to V2 in order to hold D
criminally liable for V2’s death
(2) Knowingly – knowledge is imputed when defendant was aware of the fact and correctly believes
that the fact exists
(a) Wilful blindness – defendant is aware of a high probably that something is true but
deliberately fails to investigate to avoid confirmation of the fact
(3) Willfully – elusive definition (sometimes “intentional”, sometimes “with a bad purpose”,
sometimes “evil motive, sometimes “purpose to disobey the law”)
(4) Negligence – deviation form the standard of care that a reasonable person would have
observed in actor’s situation
(a) Objective fault – actor is punished for failing to live up to an objectively determined standard
(reasonable person standard)
(i) Elements of reasonable person standard
1. Gravity of harm that would foreseeably result
2. Probability of harm occurring
3. Burden to actor of refraining from engaging in such conduct
(ii) Subjective element of “reasonable person standard” – viewed from actor’s perspective
1. Unusual physical characteristics are incorporated but unusual mental characteristics
are not
(b) Civil v criminal negligence
(i) Criminal negligence is a gross deviation from standard of reasonable care
1. Substantial and unjustifiable risk
(5) Recklessness – actor is aware of substantial and unjustifiable risk that may result from his
conduct which he disregards
(a) Subjective fault – aware of risk but consciously disregarded it
(6) Malice – intentionally or recklessly
(a) Not common-definition of “wicked” or “spite” or “ill-will”
ii) Statutory interpretation
(1) If there is a mens rea term on the face of the statute, the court will apply that mens rea
requirement to all subsequent elements (application forward only, not backward)
(2) If there is no mens rea, the court will apply the mens rea that best fits the legislative intent of the
statute
(a) Based on legislative history, earlier statutes on same topic, common law as understood at
time statute was enacted, or previous interpretations of similar statutes
iii) Specific & general intent crimes & statutes
(1) Specific intent

5
 (a) One definition: crimes requires proof that the actor’s conscious object or purpose is to cause
the social harm set out in the definition of the offense
(b) Another definition: definition of the crime 1) includes an intent or purpose to do some future
act or to achieve some further consequence, beyond the conduct or result that constitutes
the actus reus; or 2) provides that the actor must be aware of a statutory attendant
circumstance
(c) Example: burglary is the breaking and entering of the dwelling of another in the nighttime
with intent to commit a felony
(i) Specific intent portion – “intent to commit a felony”
iv) Strict Liability – no requirement for culpable mens rea, merely performance of prohibited act is
sufficient
(1) Public welfare offenses
(a) Justified because individual stands in a certain relationship to society and unlawful conduct
by the individual can result in vast harm to numerous members of society
(i) Promote increased care and caution
(2) Non-public welfare offenses (only a few – statutory rape)
(a) Justified in that the act itself is inherently wrongful
v) Mistake of Fact – actor mistakenly believes that facts are different from what they actually are and
so lacks the culpable mens rea for the crime
(1) Analysis
(a) Identify the nature of the crime as being either strict liability, specific intent, or general intent
(i) Strict liability – a mistake of fact will never exculpate a defendant since there is no mens
rea requirement to be fulfilled
(ii) Specific intent – a mistake of fact may exculpate the defendant if the mistake negates
the specific intent portion of the crime
(iii) General intent approaches
1. Culpability approach - a mistake of fact may exculpate the defendant if the mistake
was reasonable (question for jury)
a. Since practical effect of denying mistake of fact defense would be to punish
based on actor’s negligence, and negligence crimes are defined in terms of
degree of negligence (must be gross), a denial of the mistake of fact defense will
allow for punishment of defendants whose negligence may not be gross, just
“unreasonable”
b. Also permits the punishment of a negligent individual as if he were an intentional
wrongdoer
2. Moral-wrong doctrine – if the facts were as the actor had believed them to be, and
that would still constitute an immoral wrong, then there should be no exculpation of
liability on the basis of the mistaken belief (Regina v Prince)
a. 3 step analysis
i. Was the actor’s mistake reasonable? (if unreasonable, then there is no
mistake of fact defense offered)
ii. What were the facts as the actor believed them to be?
iii. Would the actor be guilty of a moral wrong if the facts were as he believed
them to be?
3. Lesser legal-wrong doctrine – an actor is guilty of the greater legal wrong in spite of a
mistake of fact if, under the facts as the actor mistakenly believed them to be, the
actor would still be guilty of a lesser legal wrong
vi) Mistake of Law – subject to a few exceptions, there is no defense for a mistake of law
(1) Rationale
(a) Promotes certainty in the law
(b) Avoids subjectivity in the law
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 (c) Deters fraud
(d) Encourages correct legal knowledge
(2) Exceptions
(a) Reasonable reliance – excuse if only if person relies on a an interpretation of the law, in the
form of an official statement produced by an authority figure responsible for the
interpretation, administration, or enforcement of the law, that is later found to be erroneous
(i) Reliance on one’s own personal interpretation will not suffice for defense
(ii) Reliance on legal counsel’s interpretation will not suffice
(b) Fair notice – excuse if the assumption that the person has knowledge of the law’s existence
is grossly unjust (Lambert v California)
(i) Based on Due Process rights
(ii) 3 requirements
1. omission v comission
2. based on status or activity?
3. prohibited by law or inherently wrong?
(c) Ignorance or mistake that negates the mens rea element of the crime
(i) Usually found in cases in which the actor’s mistaken belief of a different, non-penal law
will negate the mens rea element of the criminal law (different-law mistake)
(ii) Applicability
1. Strict liability – no defense since there is no consideration of mens rea
2. Specific intent – defense offered if the mistake negates the specific intent portion of
the crime
vii) Model Penal Code
(1) In order to find guilt, the defendant must have acted purposely, knowingly, recklessly, or
negligently with respect to each material element of the offense (§ 2.02 (1))
(a) No distinction between specific intent and general intent crimes
(b) Only four possible mens rea terms
(c) Material elements – elements relating to existence of a justification or excuse for actor’s
conduct
(i) Important consequence for determining whether an acquittal is available
(2) § 2.02 (2) – mens rea terms
(a) Purposely
(i) For result or conduct element – conscious object to engage in conduct of that nature or
to cause such a result
(ii) For attendant circumstance element – aware of the existence of such circumstances or
he believes or hopes that they exist
(b) Knowingly
(i) For result element – aware that it is practically certain that his conduct will cause such
result
(ii) For conduct or attendant circumstance element – aware that his conduct is of that nature
or that such circumstances exist
(iii) In response to “wilful blindness” doctrine – if person is aware of a high probability of…
the circumstance’s existence unless he genuinely believes it does not exist
(c) Recklessly – consciously disregards a substantial and unjustified risk that the material
element exists or will result from his conduct such that his conduct is a gross deviation from
the standard of care a law-abiding person would observe in the actor’s situations
(i) There is an element of awareness
(d) Negligently – should be aware of a substantial and unjustifiable risk that the material
element exists or will result from his conduct; conduct must be such that it would be a gross
deviation from the standard of conduct a reasonable person would observe in the actor’s
situation
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 (i) No element of awareness
(3) Statutory interpretation
(a) § 2.02 (3) – if statute is silent in terms of mens rea, then recklessly, knowingly, or purposely
are applied to all material elements (if actor acted with any one of those with respect to each
material element, then actor is culpable)
(b) § 2.02 (4) – if one mens rea is stated on the face of the statute, then that mens rea is
applied to all material elements of the statute
(4) Strict liability
(a) § 2.05 – only for “violations” do the requirements of voluntary act and mens rea not apply
(i) Violations – offenses that cannot result in imprisonment or probation but may result in
fines
(5) Mistake of Fact
(a) § 2.04 (1) – mistake is a defense if it negates the mens rea of a material element of the
offense or the law provides for the defense
(b) § 2.04 (2) – if facts were as the actor believed them to be and actor would still be guilty of a
lesser wrong, then the defense will only reduce the conviction to the lesser wrong, not
completely exculpate him
(6) Mistake of Law
(a) Generally no excuse (§ 2.02 (9)), but there are exceptions
(b) § 2.04 (3)(b) – reasonable reliance doctrine (same as common-law)
(c) § 2.04 (3)(a) – fair notice
(i) Defendant does not know of statute and statute was not published or made reasonably
available to her
(d) § 2.04 (1) – different-law mistake is a defense if it negates a material element of the offense
or the law provides for the defense
(e) § 2.04 (4) – defendant must prove defense from § 2.04 (3) by a preponderance of
evidence
viii) Mens Rea Cases
(1) Regina v Cunnigham – where defendant was charged with the unlawful and malicious causing
of poisoning of the victim as an inadvertent result of larceny, it was wrong of the trial judge to
instruct the jury that malice was to understood in its common sense of “wicked”
(a) “Malice” is a term of art
(b) The correct mens rea to be applied was whether he was reckless in causing the poisoning
(2) Regina v Faulkner – where the defendant accidentally set fire to a ship while in the course of
stealing rum, the court’s direction to disregard the mens rea of the defendant was incorrect; a
culpable mens rea must accompany each element of each crime charged
(3) United States v Neiswender -

Concept Common Law MPC

⮚ Intentionally –
⮚ 1) harm is actor’s desire; &
⮚ purposely or knowingly
⮚ 2) virtually certain that harm will
result from conduct
⮚ Purposely –
Mens Rea Terms ⮚ 1) conduct/result – conscious
(semi-correlation object to engage in conduct or
table) ⮚ cause result
⮚ 2) attendant circumstances –
aware of the existence of such
circumstances or hopes they exist

8
 ⮚ Knowingly – ⮚ Knowingly –
⮚ 1) aware of the fact; or 1) conduct/attendant circumstance
⮚
⮚ 2) correctly believes the fact – awareness of his conduct or such
exists circumstances
⮚ 2) result – awareness of practical
⮚ Willfully certainty of result being caused by
conduct
⮚ Recklessly – actor knows of
⮚ Recklessness – actor was aware of substantial or unjustifiable risk but
substantial and unjustifiable risk consciously disregards it in such a
but consciously disregarded it in way that it is a gross deviation from
his course of conduct the standard of care a law-abiding
citizen would observe in his situation
⮚ Negligence – actor should have ⮚ Negligently – actor should be aware
known of a substantial and of substantial or unjustifiable risk and
unjustifiable risk and conduct is a his failure to perceive the risk is a
deviation from the standard of care gross deviation from the standard of
a reasonable person would care a reasonable person would
observe in actor’s situation observe in actor’s situation
Statute
⮚ Applied forward to all subsequent
has 1 ⮚ Apply that mens rea to all elements
elements of the crime, but not
mens rea of statute
backwards
term
Statutory ⮚ Legislative intent is inferred from…
Statute
Interpreta ⮚ Legislative history
silent on
tion ⮚ Earlier statutes on same subject
the face ⮚ Apply recklessly, knowingly, or
⮚ Common law as it was
with purposely
understood at time of enactment
regards to
⮚ Previous interpretations of similar
mens rea
statutes
⮚ Public welfare offenses –
defendant stands in particular
relationship to society such that
⮚ “Violations”
Strict criminal conduct by defendant will
⮚ Statute assigns strict liability –
Liability cause harm to vast number of
negligence will suffice
individuals
⮚ Non-public welfare offenses – only
a few (i.e. statutory rape)
⮚ Strict liability cases – never
exculpate
⮚ Specific intent cases – exculpate if
mistake negates the specific intent
⮚ Assuming mistaken belief was true, if
portion
defendant could be convicted of
⮚ General intent cases – may or may
Mistake of lesser crime, then mistake will only
not exculpate
Fact mitigate charge to lesser crime
⮚ If mistake was reasonable, will
⮚ If mistake negates a material
exculpate
element of the offense
⮚ Assuming mistaken belief was
true, if defendant would still have
committed a moral wrong, then
mistake is not a defense
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 ⮚ Assuming mistaken belief was
true, if defendant would could be
convicted of a lesser wrong, then
defense will not hold against
greater wrong
⮚ Reasonable reliance – if mistake of
law was based on official statement
of interpretation by authority figure
with power to provide such
interpretation later found to be
erroneous, then mistake is a
defense
⮚ Fair notice – if presumption of
knowledge of the law is grossly ⮚ Reasonable reliance
unjust, then ignorance of it is ⮚ Fair notice – if actor was not aware
excused (Due Process violation) of law and law was not published or
Mistake of
⮚ Omission v commission otherwise made reasonably available
Law
⮚ Liability based on status v to actor
specific act ⮚ Different law mistake if it negates a
⮚ Prohibited by law v inherently material element of the crime
wrong
⮚ Different law – if mistake of
different law led to mistake of fact
for crime being charged, then
mistake is an excuse only for a
specific intent crime and only if
mistake negates the specific intent
portion

HOMICIDE
V) Homicide – the killing of a human being by another human being
a) Murder – the killing of a human being by another human being with malice aforethought
i) 4 states of mind necessary to determine malice
(1) Intent to kill (express malice)
(2) Intent to cause serious bodily injury (implied malice)
(3) Recklessness with extreme indifference to human life (implied malice)
(4) Intent to commit a felony during which a homicide occurs (implied malice)
b) Manslaughter – unlawful killing without malice aforethought
i) Three types
(1) Heat of Passion - Intentional killing committed in sudden heat of passion upon adequate
provocation
(2) Criminal Negligence - Result of an act, lawful in itself, but done in a manner that is unlawful and
without due circumspection or caution
(3) Misdemeanor Manslaughter (Unlawful-act manslaughter) – unintentional killing during the
commission of an unlawful act
c) Murder-1 – Intent to kill murder
i) How to prove intent?
(1) Natural and probable consequences rule – use of syllogism
(a) Syllogism

10
 (i) Ordinary people intend the natural and probable (foreseeable) consequences of their
actions
(ii) Defendant is an ordinary person
(iii) Therefore, the defendant intends the natural and probable consequences of his actions
(b) When probable consequence of defendant’s actions are the death of another human being,
then intent is proven through this syllogism
(2) Deadly weapon standard – use of a deadly weapon directed towards a vital organ of the another
person will be sufficient to prove intent to kill
(a) Deadly weapon – a weapon that is capable of causing death or serious bodily injury
ii) When statute provides “willful, deliberate & premeditated”?
(1)
Concept Common Law MPC
⮚ Intent to kill:
⮚ Carroll jurisdiction – intent to
kill (can be satisfied by deadly
weapon standard)
⮚ Premediation satisfied by
“intent to kill”
⮚ Guthrie jurisdiction – intent to
Murder-1 kill + reflection (reflection
–Express evidenced by 1. planning, 2.
Malice motive, & 3. manner of killing)
⮚ Felony Murder -1 – Homicide
that results from conduct during
the commission or attempted
commission of a felony
⮚ Predicate felony is enumerated
in murder-1 statute
⮚ Felony is cause of homicide
⮚ purposely or knowingly; or
⮚ In Guthrie jurisdictions – intent
⮚ recklessly under circumstances
to kill without premeditation
Murder manifesting an extreme indifference
⮚ Homicide results from intent to
to value of human life (presumed if
cause serious/grievous bodily
engaged or accomplice in felony)
harm
⮚ Depraved heart murder –
recklessness (conscious
disregard of substantial and
unjustifiable risk to human life)
Murder-2 – with extreme indifference to
Malice human life
Implied ⮚ Felony-Murder-2 – Homicide
that results from conduct during
the commission or attempted
commission of a felony
⮚ Predicate felony is not
enumerated, but subject to…
⮚ 1. Inherently dangerous
felony
⮚ 2. Merger doctrine
⮚ 3. In furtherance of the felony

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 ⮚ Agency v proximate cause
v Taylor (provocative act
doctrine)
⮚ Heat of passion under
reasonable provocation without
time for cooling
⮚ Provocation
⮚ Girouard jurisdiction –
provocation sufficient only in
following categories: 1.
extreme assault or battery
upon the defendant, 2.
mutual combat, 3.
defendant’s illegal arrest, 4.
injury or serious abuse of a
close relative of the
defendant’s, or 5. sudden
Voluntary
discovery of spouse’s
adultery. Words are not
enough for provocation
mitigation
⮚ recklessly; or
⮚ Maher jurisdiction – elements
⮚ otherwise be murder but committed
required as follows: 1. heat of
Manslaug under influence of extreme emotional
passion, 2. reasonable
hter disturbance with reasonable excuse
provocation, 3. no time for
(reasonableness determined from
cooling and no reasonable
viewpoint of actor’s situation)
person would have cooled, &
4. provocation has to cause
killing act. Question for jury to
decide if provocation was
reasonable or not
⮚ Criminal Negligence – a lawful
act performed in an unlawful
manner without due caution and
circumspection – conduct that is
a gross deviation from the
standard of care a reasonable
Involuntary person should have used
⮚ Misdemeanor-Manslaughter –
homicide that results from the
commission of an unlawful act
that is either not a felony or not
applicable to felony murder rule
as it is not an enumerated felony
Negligent Homicide ⮚ negligently

12
Murder Flow Chart for Homicide (non-MPC)

13
14
VI) Causation
a) Actual Cause (“but for” test – But for D’s voluntary act, would the social harm have occurred when it
did?)
i) Functions to exclude certain forces from criminal liability
ii) To hold liable, just need to find that D is an actual cause of the social harm (not necessarily the
actual cause)
iii) Problem: there may be a number of actual causes
(1) Courts will focus on the abnormal matters in defining causation
(2) Example: D shoots V in the chest, killing V. Can be said that but for D’s shooting V in the chest,
V would not have died. But also can be said that but for the fact that V’s heart muscles not
being strong enough to withstand the bullet, V would not have died. But for D’s sure aim, V
would not have died. But for V’s failure to get prompt medical attention, V would not have died.
(a) Courts will only attribute causation to the first “cause” and call all the others conditions
iv) Need a culpable mens rea for the causal actor
v) Multiple actual causes
(1) D1 shoots V (V would die in 1 hour). Then, D2 shoots V (V would die in 1 hour from just this
wound), but because of D1’s shooting, effects compound and V dies in 5 minutes
(a) Both D1 and D2 can be said to have each accelerated the result (death) to V; hence both
are actual causes of the result (not necessarily the cause)
(2) D1 shoots V in heart. At the same time, and independently, D2 shoots V in the head. Either
shot would have killed V instantly.
(a) “But for” test seems to fail (But for D1 shooting V in the heart, V would still have died from
the head wound; vice versa) – neither party accelerated the death
(b) Modify “but for” test – But for D’s voluntary act, would the social harm have occurred when
and as it did?
(i) Can hold both D1 and D2 liable
b) Proximate Cause
i) So long as there is no intervening event of causal significance, a D’s proximate cause will be
deemed the direct/actual cause
ii) Intervening causes – independent force that produces social harm but only after the commission of
the crime
(1) De Minimis contribution by actor to social harm
(a) Example: D strikes V non-fatally. V drives to hospital to seek medical attention. On the way,
V’s car is struck by lightning and V dies. D would not be held liable because his contribution
to the death was de minimis.
(2) Foreseeability of intervening cause
(a) Responsive/dependent intervening cause – act that occurs in response to D’s prior
wrongdoing
(i) Generally will not relieve D of liability unless response was unforeseeable and highly
abnormal
(b) Coincidental/independent intervening cause – act’s only relation to D’s wrongdoing is that D
places V in situation where intervening cause would independently act on V
(i) Generally will relieve D of liability unless coincidental cause was foreseeable
(3) Intended consequences doctrine – “intended consequences can never be too remote”
(a) Example: M wants V dead. M gives X poison, telling X that it is medicine that must be given
to V. X does not believe her and negligently places the poison on a table. C comes by,
takes the poison, and gives it to V. V dies. M still liable for V’s death.
(i) Analysis
1. Intervening cause 1: X negligently places poison on table = responsive intervening
cause
a. M is still liable because the act was not highly abnormal
15
 2. Intervening cause 2: C takes poison and gives it to V = coincidental intervening
cause
a. M is still liable because act was foreseeable?
(4) Apparent safety doctrine – When D’s actions no longer pose a threat, D is relieved of any
liability for harm that may arise
(a) Example: D threatened V. V ran to her father’s house. When in front of her father’s house,
V decided to sleep outside rather than wake her father. V froze to death during the night. D
would not be liable.
(i) Can be said that V acted as an independent free-will actor with a separate conscious
purpose, breaking the chain of causation
(ii) Can also be said that the responsive intervening cause was highly abnormal so D is
relieved of liability
(iii) Maybe even that D’s contribution to the V’s death was de minimis
(5) Voluntary act of a free will actor – act must be free, deliberate and informed in order to relieve D
of liability
(6) Omissions – omission will rarely be a superseding intervening cause
c) Model Penal Code
i) Actual cause – applies “but for” test
ii) Proximate cause – relates to actor’s culpability
(1) §2.03 (2)(b) & (3)(b) – when actual result diverges from intended result, question is whether he
caused the prohibited result with the level of culpability required by the definition of the offense
(a) So long as actual result is not too remote to have a just bearing on the actor’s liability, he is
still liable
(2) For strict liability crimes, causation is not established unless the actual result is a probable
consequence of the actor’s conduct

16
VII) Inchoate Crimes (Attempt, Solicitation, Conspiracy, Accomplice Liability)
Offense Mens rea Actus Reus Merges? Defenses Miscellaneous
⮚ Tests for where liability
⮚ Generally – specific ⮚ Common law allowed for
begins in spectrum of
intent to commit target legal impossibility as a
“mere preparation” to
crime required (must be defense but not factual
“perpetration”
the conscious object to impossibility
⮚ Last act – when actor
cause the commission of ⮚ Factual impossibility –
performed all acts he
the target crime) generally not a defense
believed necessary to
⮚ Result crimes – actions except for…
commit the target
must be in furtherance of ⮚ Inherent factual
offense (i.e.
the specific result with impossibility – method
unsuccessful complete
the intention of causing used to accomplish the
attempt)
the result crime is one that a
⮚ Physical proximity –
⮚ No attempted reasonable person
when it is within the
felony-murder would see as
actor’s power to
⮚ Yes attempted completely
complete the crime
voluntary inappropriate to the
almost immediately
manslaughter – objectives sought
⮚ Dangerous proximity
incomplete or ⮚ Legal impossibility
– when the acts come
unsuccessful (general trend is to only
so near the completed
heat-of-passion allow pure legal
commission of the ⮚ Attempt merges with
homicide impossibility as a
crime that it is substantive crime
Comm ⮚ No attempted defense)
reasonably likely that ⮚ Cannot be convicted
Attempt on involuntary ⮚ Pure legal ⮚
the crime will be of both the target
Law manslaughter – impossibility – actor
completed crime and the
cannot purposely believes he is
⮚ Courts will consider attempt
cause reckless result committing a crime but
1) nearness of the
⮚ Conduct crimes – need he is not (i.e. D sits in a
danger (how many
specific intention to chair believing it is a
steps are left), 2) the
engage in prohibited crime to sit in that chair)
gravity of the harm, &
conduct ⮚ Hybrid legal
3) degree of fear felt
⮚ NOTE: Can impossibility – actor’s
⮚ Equivocality test –
specifically intend to goal is illegal but
when there can be no
engage in reckless commission of offense
other innocent
conduct (i.e. there is is impossible due to a
explanation; the act
attempted reckless mistake of fact in the
itself reflects the
endangerment) legal status of an
criminal intent
⮚ Attendant circumstances attendant circumstance
⮚ Substantial step –
– split… (i.e. D receives
(based on MPC) when
⮚ Majority – no specific unstolen property
the actor has taken a
intent for attendant believing it is stolen)
substantial step,
circumstances ⮚ Abandonment may or may
strongly corroborative
⮚ Minority – reckless for not be defense (depending
of criminal intent,
attendant on jurisdiction); where
towards the completion
circumstances accepted it must be…
of the crime

17
 ⮚ Other – no special ⮚ Complete – cannot
mens rea; culpability merely postpone
held if actor had commission of offense
specific intent with ⮚ Voluntary – result of
regards to prohibited genuine change of heart
conduct or result ⮚ Cannot arise from
unexpected resistance,
absence of essential
element to completion
of crime, or
circumstance that
increases likelihood of
arrest
⮚ § 5.01 (1) – A person is
guilty of an attempt to
commit a crime if, acting
with the kind of culpability
otherwise required for
commission of the crime,
he:
⮚ (a) purposely engages
in conduct that would
⮚ Only pure legal impossibility constitute the crime if
⮚ Purposely engaging in is a defense – all others are the attendant
conduct or to cause excluded by the language of circumstances were as
⮚ Substantial step strongly
result § 5.01 (1) he believes them to be;
corroborative of criminal
⮚ Exceptions ⮚ Abandonment is a defense or
intent
⮚ Result crimes – if it is complete and ⮚ for completed
⮚ §5.01 (3) – actor can be
enough if actor voluntary attempts
liable for attempt of a
believes that conduct ⮚ Inherently impossible ⮚ (b) when causing a
MPC crime if he purposely ⮚
cause result attempt – trial judge given particular result is an
provides aid to another,
⮚ Attendant discretion to dismiss certain element of the crime,
regardless of whether or
circumstances – prosecutions under this idea does or omits to do
not the crime is
enough if actor (analogous to inherent anything with the
completed or even
believes that intended factual impossibility – but a purpose of causing or
attempted
result will occur under discretionary power given to with the belief that it will
the circumstances judge rather than a defense cause such result
for defendant) without further conduct
on his part; or
⮚ for completed
attempts
⮚ (c) purposely does or
omits to do anything
that, under the
circumstances as he
believes them to be, is
an act or omission

18
 constituting a
substantial step in a
course of conduct
planned to culminate in
his commission of the
crime
⮚ for incomplete
attempts
⮚ Innocent instrumentality – if
solicited person is
⮚ Merges with target
fraudulently mislead to
crime (under
believe that he would be
⮚ Invites, requests, accomplice liability or
engaging in a lawful act,
commands, hires or conspiracy liability)
that person is an innocent
encourages another to ⮚ Solicitor plans to be an
Comm instrument and so there is ⮚ Only applies to felonies
commit a particular accomplice (in the
on ⮚ Specific intent required no solicitation that has and serious
offense background)
Law occurred misdemeanors
⮚ Actus reus complete ⮚ No solicitation if the
⮚ “Solicitor” intends to carry
when the solicitation is “solicitor” intends to
out the crime himself and
communicated commit the crime
merely uses another as a
himself and merely
means to carry out the
requests assistance
crime (other person is like
Solicitat a gun)
ion ⮚ Solicitation applies to all
crime
⮚ Recognizes a solicitation
to commit an attempt
⮚ Abandonment
⮚ Solicitor can be principal
⮚ Complete and voluntary
in the first requesting
⮚ Commands, encourages renunciation of criminal
⮚ Purposely facilitates assistance
or requests another to intent; and
MPC commission of ⮚ ⮚ Recognizes an attempted
commit the substantive ⮚ Persuades or prevents
substantive crime solicitation
offense solicited party from
⮚ §5.04 - Mistake of fact is
committing substantive
immaterial; culpability will
crime
be determined by the
facts of the situation as
the defendant determines
them to be
⮚ Agreement between two ⮚ Does not merge with
⮚ Two or more must 1) ⮚ Impossibility is not a ⮚ Plurality rule - at least 2
or more parties to engage target attempt; can be
intend to agree and 2) defense parties, both with the
in unlawful conduct or prosecuted for both
intend that object of ⮚ Abandonment is not a required mens rea (both
Comm lawful conduct in unlawful conspiracy to commit
Conspir agreement be achieved complete defense (in intents) are required –
on means target offense and the
acy ⮚ In jurisdictions where jurisdictions requiring an creates a problem in the
Law ⮚ Inferred from target offense itself
only purpose will overt act, once the overt act case of the undercover
choreographed actions ⮚ Liability derives from
suffice, that purpose has been performed, agent conspiring with one
⮚ Some jurisdictions may being a party to the
may be inferred from abandonment will not other defendant
require an overt act in agreement – no

19
 D’s knowledge of furtherance of the actual assistance in completely relieve
customer’s plans conspiratorial objective the crime is required conspirator)
⮚ Some jurisdictions will (any act, no matter how ⮚ Can relieve the actor from
also follow Corrupt trivial) before subsequent liability for the
Motive doctrine – prosecution for acts of his co-conspirators
parties to a conspiracy conspiracy can begin ⮚ Requirements:
must also have a corrupt ⮚ Express agreement not ⮚ Effective
or wrongful motive necessary; so long as communication of
⮚ Malum in se – parties there is a tacit withdrawal to each of
to conspiracy only agreement for the fellow
need sufficient cooperation as inferred co-conspirators
knowledge to from the circumstances ⮚ Some courts even
appreciate the of the case (Interstate require that abandoning
wrongfulness of their Circuit) conspirator must
planned conduct successfully dissuade
⮚ Malum prohibitum – others from pursuing
provides exception to their criminal objectives
usual “ignorance of ⮚ Wharton’s rule –
law is no excuse” rule agreement by two persons
– parties to a to commit an offense that by
conspiracy cannot be definition requires the
convicted if they plan voluntary concerted criminal
to do a morally participation of two persons
innocent & unlawful cannot be prosecuted as a
act if they did not conspiracy (i.e. incest,
know the act was adultery, dueling, sale of
unlawful contraband, etc.)
⮚ Some courts may
disregard Wharton’s rule if
the contemplated crime
has not yet been
attempted or completed
⮚ Legislative-exemption rule –
person may not be
convicted of conspiracy to
violate an offense if her
conviction would frustrate a
legislative purpose to
exempt her from
prosecution for the
substantive crime (i.e. under
an act designed to protect
females from sexual
exploitation, a female who
was transported across
state lines for sexual
exploitation could not be
20
⮚ Does not require the
successful prosecution
of all parties (or even
two) – prosecution must
simply prove that two or
more were involved in
the conspiracy
⮚ Can combine with
Wharton’s rule to
produce following
effect: three people
charged with conspiracy
(A-seller; B-co-seller;
C-buyer); B is acquitted
because he lacked the
requisite intent;
Wharton’s rule
re-emerges and A & C
cannot be prosecuted
for conspiracy
⮚ Pinkerton – party to
conspiracy can be held
liable for any criminal act
committed by
co-conspirator if 1) it is
within the scope of the
conspiracy & 2) it is a
foreseeable consequence
of the unlawful agreement

⮚ Agreement must be for an
unlawful objective
⮚ Merges with the target
⮚ For conspiracy to commit
felonies of 3rd degree or
⮚ Requires purposeful misdemeanors, an overt
MPC
agreement act is required; no overt
act required for
conspiracies to commit
felonies of the 1st or 2nd
degree
⮚ Accomplice must 1) ⮚ Assistance by physical
intent to assist principal conduct
& 2) requisite mens rea ⮚ Assistance by
for the target offense psychological influence
⮚ Must be conscious ⮚ Mere presence alone is
object that target insufficient (would need
offense is committed evidence of prior
⮚ Result oriented crimes agreement to provide
⮚ Not a question of
(where result is assistance that was not
recklessly or given to justify
negligently caused conviction on the basis
Accomp Comm (i.e. involuntary of mere presence)
lice on manslaughter)) – to ⮚ Assistance by omission (if
Liability Law find liability, omitter had a duty to
accomplice must have intervene)
had the requisite ⮚ Once assistance is
mens rea for the result shown, any amount of
and purposely assistance (no matter
assisted in the how trivial) is sufficient
conduct that lead to ⮚ NOTE: assistance must
the result (McVay) be effective assistance
⮚ Cannot hold the (it must be recognized
“feigning accomplice” and acknowledged by
liable since he did not principal for it to be
share in the 2nd intent effective)
convicted of conspiracy; she
is a victim sought to be
protected)
⮚ Impossibility not a defense
⮚ Complete and voluntary
abandonment is a defense
⮚ Complete and voluntary
⮚ Unilateral approach –
renunciation of criminal
focuses on the culpability
intent; and
of each party to a
⮚ Persuades or prevents
conspiracy individually
offense unless solicited party from
(resolves issue of
prosecution proves that committing substantive
undercover agent)
conspiracy had crime
⮚ §5.04 - Mistake of fact is
additional crimes not ⮚ Wharton’s rule is not
immaterial; culpability will
yet committed or recognized
be determined by the
attempted ⮚ No conspiracy prosecution if
facts of the situation as
⮚ Not guilty under law
the defendant determines
defining crime or as an
them to be
accomplice in its
commission
⮚ Inevitably incident to
commission
⮚ Liability of accomplice to
principal…
⮚ If principal is
acquitted…
⮚ Principal was
innocent
instrumentality –
would treat
⮚ Legislative-exemption rule
“accomplice” as if he
merging; accomplice ⮚ Abandonment – can relieve
were the principal
liability is derivative accomplice of only
⮚ If defense of principal
liability subsequent wrongdoings by
was justified, then
⮚ Liability arises from principal
accomplice cannot be
assistance in crime ⮚ Must communicate his
convicted (no
(either directly or withdrawal and make
wrongdoing by
indirectly); no prior bona fide efforts to
principal to impute to
agreement is neutralize effect of prior
accomplice)
required assistance
⮚ If principal was
acquitted on the basis
of an excuse (i.e.
insanity), then
accomplice could still
be convicted (action
was still wrongful but
excusable; no reason
21
 ⮚ Most courts hold that to extend excuse to
knowledge with accomplice – only
regards to the wrongfulness of
commission of the action is extended)
target offense is ⮚ If principal acquitted
insufficient; must be a for lack of requisite
“community of mens rea, accomplice
purpose” (Gladstone) may still be held
⮚ Requisite mens rea for liable because he
subsequent/alternative assisted in the actus
(other than the target reus of the crime (not
offense) offenses very persuasive
⮚ Negligence - If the because a “crime”
subsequent offense requires the principal
was “reasonably to have both actus
foreseeable”, can reus and mens rea;
extend accomplice principal has
liability (Luperello) committed no “crime”)
⮚ Natural & probable ⮚ If principal was the
consequence – if “feigning party”,
subsequent offense problem for
was a natural and conviction exists
probable ⮚ Innocent
consequence in the instrumentality
ordinary course of does not apply
things that may be since “principal”
reasonably anticipated was not
to occur from the accomplice’s
planned events (Roy) instrument
⮚ Maybe under
“assisted in actus
reus” argument?
⮚ If principal is
convicted…
⮚ Accomplice can
generally be
convicted of no
greater offense than
the principal
⮚ Exception in criminal
homicide
⮚ Purposely assists ⮚ Solicits principal to
⮚ Not an accomplice if… ⮚ Liability of accomplice to
⮚ Reckless/negligent commit offense
⮚ Victim of offense; principal – accomplice can
crimes – liable if person ⮚ Aids principal in
MPC ⮚ ⮚ “Accomplice’s” conduct is still be held liable
is accomplice in conduct commission of offense
inevitably incident to regardless of what
(purposely assisted) ⮚ Agrees to aid principal
commission of offense; or happens to principal
which lead to result & (even if aid is not given)

22
 had requisite mens rea ⮚ Attempts to aid (extends ⮚ Accomplice abandoned (convicted, acquitted, not
for result liability to ineffective aid) criminal purpose and prosecuted)
⮚ Rejects natural and ⮚ Fails to act when there is participation ⮚ Can also be convicted
probable consequences a legal duty ⮚ Complete and voluntary of different offense or
doctrine renunciation; and different degree (does
⮚ ⮚ Makes effort to not depend on
neutralize effect of his principal’s conviction;
assistance, gives looks at culpability of
warning to police, or accomplice to
attempts to prevent determine conviction)
commission of crime

23
VIII) Defenses (Justifications, Excuses)
DEFENSE Common Law
⮚ Deadly force permitted when the actor
reasonably believes that it is
necessary to prevent imminent and
unlawful use of deadly force by the
aggressor
⮚ Necessary – there must be no other,
non-deadly option available to
remove the threat
⮚ Some jurisdictions do not require
retreat
⮚ Other jurisdictions require person to
retreat if doing so would completely
remove the threat
⮚ Availability of retreat option will be
assessed from the defendant’s
subjective viewpoint
⮚ Whether retreat was required will
be viewed by the nature of the
Self-defense – force used by the defendant, not
arises when the nature of the force defended
defendant has against (State v Abbott)
used physical ⮚ “Castle” exception in all
force (and is jurisdictions – person not required
charged with an to retreat if confronted with deadly
assaultive crime) force in his/her own dwelling
in response to ⮚ Proportional – deadly force is only
threat of physical permissible in response to deadly
force force
⮚ Reasonable belief
JUSTIFICATION ⮚ Subjective – considers that actor
believed deadly force was
necessary
⮚ Objective – compares that
subjective belief to an objective
“reasonable person” standard to
assess the appropriateness of the
deadly force
⮚ Imminent threat – must be
immediate
⮚ If harm is inevitable, use of force
would still be premature until the
threat is immediate
⮚ Aggressor – one threatening to use
deadly force
⮚ NOTE: even initial aggressor may
have “self-defense” available if he
has retreated from his initial
aggression, communicated to other
24
MPC
⮚ Deadly force permissible if actor
believes it immediately necessary to
protect himself on the present occasion
against death, serious bodily injury,
forcible rape or kidnapping
⮚ NOTE: focus shifts from how soon
before the aggressor’s threat is
carried out to how soon the
defendant feels he needs to respond
(allows for sooner response)
⮚ If person, with purpose of causing
death or serious bodily injury (deadly
aggressor), provoked the use of
deadly force against himself in the
same encounter, self-defense
unavailable
⮚ Non-deadly aggressor excluded – a
non-deadly aggressor can still
respond to deadly force with deadly
force
⮚ “in the same encounter” –
corresponds to the common law
idea that the defense will become
available to an initially deadly
aggressor who retreats and
communicates the removal of his
threat (this would create a new
encounter)
⮚ Retreat is necessary if available
⮚ Except if actor is in his own home
or work u
⮚ Imperfect self-defense – if actor was
reckless or negligent with the facts
creating his belief that the killing was
justified, then the actor can still be held
culpable if charged with a crime
requiring reckless or negligent
culpability (i.e. manslaughter or
negligent homicide)
⮚ If justifiable deadly force is use
recklessly or negligently with regards to
a bystander, then defense is
unavailable with regards to that
bystander’s death
 person that he is no longer a threat,
but is still presented with the threat
of deadly force upon him (in which
case, the other person has become
the aggressor)
⮚ Some jurisdictions will allow defense of
imperfect self-defense (mitigate
conviction to manslaughter)
⮚ If non-deadly aggressor confronted
with threat of deadly force in
response, responds himself with
deadly force without retreating nor
communicating the removal of his
threat = imperfect self-defense
⮚ If killing of another in self-defense
was found to be unreasonable =
imperfect self-defense
⮚ Battered woman syndrome
⮚ Confrontational homicide (kills
abusive husband during a battering
incident) – self-defense available
⮚ Hires third-party to kill husband –
self-defense unavailable
⮚ Non-confrontational homicide (kills
abusive husband in his sleep or
during lull) – questionable
⮚ Lack of imminent threat – but
argued that illusion of futility of
escape creates an ongoing
imminent threat
⮚ Innocent bystander killed in course of
justifiable self-defense homicide?
⮚ Some courts hold that justification
transfers (like transferred intent
doctrine for murder) to bystander’s
death
⮚ If defendant acted recklessly or
negligently with regard to death of
bystander, can be held liable for
manslaughter
Defense of
⮚ Reasonable appearance – use of ⮚ Use of deadly force allowed if
Others – arises
deadly force permissible if it reasonably intervenor 1) himself would be justified
when defendant
appears to the intervenor to be justified in using deadly force under the
has used physical
on behalf of the third party (honest & circumstances he believes them to be,
force (and is
reasonable) 2) believes that third-party would be
charged with an
⮚ Alter-ego - use of deadly force justified in using deadly force & 3)
assaultive crime)
permissible if the third-party would be believes that his intervention is
in response to
justified in using deadly force (honest, necessary for third-party’s protection
threat of physical
reasonable & accurate) (honest & reasonable)
force
25
 ⮚ NOTE: focus is not on the actor’s ⮚ Retreat rules have limited
JUSTIFICATION perceptions of the necessity of deadly applicability
force, but on the third-party’s ⮚ If intervenor’s retreat would ensure
justifiable use of deadly force – actor third-party’s complete safety
may incorrectly believe that deadly ⮚ If intervenor could secure a means
force is needed, but jury could find of retreat for third-party which
that third party would not have been would ensure third-party’s complete
justified in using such deadly force safety
and actor would be convicted; actor ⮚ Not required if in either’s dwelling
bears the risk or work
Defense of ⮚ Deadly force is never permitted in ⮚ Deadly force is never permitted in
Property defense of property defense of property (chattel)
⮚ Deadly force is permitted in defense of
one home under one of three following
approaches:
⮚ Early common law – may use deadly
force if it is necessary to prevent an
⮚ Deadly force is permitted in 2
imminent and unlawful entry of his
circumstances:
dwelling
⮚ If actor believes that intruder is
⮚ Middle approach – may use deadly
seeking to dispossess him of his
force if there is a reasonable belief
dwelling, intruder has no right to
that other person 1) intends an
possession, & force is immediately
imminent and unlawful entry; 2)
Defense of necessary
intends to injure any occupant or
Habitation ⮚ If actor believes that 1) person is
commit a felony; & 3) deadly force is
attempting to commit arson, burglary,
necessary
JUSTIFICATION robbery or felonious theft or property
⮚ Narrow approach – may use deadly
destruction; 2) force is immediately
force if there is a reasonable belief
necessary; & 3) person used or
that other person 1) intends an
threatened deadly force or the use of
imminent and unlawful entry; 2)
non-deadly force would expose the
intends to commit a forcible felony or
actor or others to substantial danger
kill or serious injury any occupant; &
of serious bodily injury
3) deadly force is necessary
⮚ NOTE: all three focus on the
imminent entry; there does not have
to be an actual entry before the right
to use deadly force is available
⮚ Must be a designated peace officer (or
assisting one whom the actor believes
is a designated peace officer
⮚ Deadly force permitted when:
⮚ 1) arrest is for a felony;
Effectuation of
⮚ Must have correct, reasonable and ⮚ 2) use of deadly force is immediately
Arrest
honest belief that an unlawful felony necessary to effectuate arrest and
has occurred purpose of arrest of known or
JUSTIFICATION
believed to be known by suspect
⮚ 3) use of deadly force poses no risk
to bystanders
⮚ 4) actor believed crime included use,
or threatened use of, deadly force, or
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 there is a substantial risk that
suspect will kill or seriously harm
another if arrest is delayed
⮚ Deadly force permitted, if necessary, to ⮚ Deadly force permitted if officer or
prevent commission of felonies citizen believes that there is 1) a
Crime
⮚ MAJORITY – right to use deadly substantial risk that suspect will cause
Prevention
force limited to prevention of death or serious bodily harm to another
atrocious or forcible felonies if not prevented and 2) use of deadly
JUSTIFICATION
⮚ MINORITY – right to use deadly force force does not pose a risk to
extended to any felony bystanders
⮚ Violation of criminal law allowed if:
⮚ Actor is faced with imminent danger;
⮚ Action will be effective in abating
danger sought to be avoided;
⮚ No other effective, legal means of
abating danger;
⮚ Less serious harm will be effected by
the violation of the law than the harm
sought to be avoided – this will be a
determination left to the jury rather
than a subject value judgment; ⮚ Violation of criminal law justified if:
⮚ No legislation already dictating what ⮚ Actor believes violating that particular
should be done by one in defendant’s law is necessary to avoid harm;
situation; & ⮚ Harm sought to be avoided is greater
⮚ Defendant must come to situation than the harm caused by violation of
without having done anything to bring particular law; &
the situation upon him ⮚ No legislative intent to exclude the
⮚ Potential limitations to applicability of conduct in such circumstances
Necessity defense: plainly exists
(Choice of Evils) ⮚ Situation must arise from a natural ⮚ NOTE: is extended to homicide cases
force ⮚ NOTE: no requirement for harm to be
JUSTIFICATION ⮚ Not applicable in homicide cases imminent
⮚ Only applies to cases involving ⮚ NOTE: no automatic loss of defense if
protection of persons and real actor somehow contributed to situation
property (no application to cases giving rise to necessity, but,
involving protection of reputation, unavailable if, acting recklessly or
economic interest, etc.) negligently to bring about the situation
⮚ In prison escape cases, defense of giving rise to the necessity, actor is
necessity will be available when convicted of a crime for which reckless
options are either escape or stay with or negligent culpability would suffice
actual or threatened sexual assaults
and death (State v Unger)
⮚ Factors such as whether threat was
specific, whether there was time for
complaint to authorities, whether
there was time to resort to courts,
whether there was force used
towards personnel in escaping, and
whether defendant immediately
reported to authorities once in a
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 position of safety from threat will play
a role in assessing the claim of
necessity
⮚ NOTE: in a jurisdiction which limits
necessity defenses to those cases
arising out of natural forces, prison
escape cases would likely not be
applicable
⮚ Defense is offered if criminal act was
performed under following
circumstances:
⮚ Another threatened to kill or seriously
injure the actor unless the offense ⮚ Defense offered if:
was committed; ⮚ Actor compelled to commit offense
⮚ Actor reasonably believed that the through unlawful force or threat of
threat was genuine; force;
Duress ⮚ Threat was present, imminent and ⮚ A person of reasonable firmness in
(Compulsion) – impending at time of act; actor’s situation would not have been
at its core, it ⮚ No reasonable escape other than able to resist the coercion
requires coercion compliance; & ⮚ NOTE: unusual introduction of
through imminent ⮚ Actor was not at fault for exposing “reasonable” subjective/objective
physical harm to herself to the situation test
perform a specific ⮚ Threat ⮚ No requirement that threat is imminent
act (common law) ⮚ Must be from human ⮚ Applicable to homicide cases
⮚ Must threaten bodily integrity (death ⮚ No requirement that threatened person
EXCUSE or serious bodily harm); be a family member (if not the actor)
⮚ Must be immediate at time of act; ⮚ Only threat to bodily integrity will be
failure to comply, at that moment, recognized as a valid threat
would result in effectuation of threat ⮚ Applies to any criminal act performed
⮚ Must be directed towards the actor or in response to threat
actor’s family member
⮚ Not a defense to homicide
⮚ Only applies to specific criminal act
ordered by coercer

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