Criminal Law Notes

PURPOSE OF CRIMINAL SANCTION 5

Utilitarian 6
Retribution 6

ELEMENT OF CRIMES 9

ACTUS REUS 15

1. Voluntary Act 15
3) MPC 2.01(1) Voluntary Act or Omission 15
4) MPC 2.01(2) Involuntary Act 15
5) Martin v. State (Ala. Ct. App. 1944): 17
6) People v. Newton (Cal. 1970): 17
7) People v. Decina (N.E. 1956): 18

2. Omission 19
2) Jones v. United States (D.C. 1962): 4 types of legal duties 19
d) Pope v. State (Md. 1979): crazy mother 22
6) Wrongfully vs. innocently putt another on peril 24

MENS REA 25

Common Law Mens Rea 25

2) Malice 25
3) Specific vs. General Intent 27
5) Civil vs. Criminal Negligence 28
6) When statute is silent 29

MPC Approach 30
8) Willful Blindness Doctrine vs. MPC 2.02(7): 32

Elemental analysis 35
1) Guide for analysis 35
3) MPC Rules of Constructions 36

MISTAKE 40

Mistake of Fact 40
3) Common law approach 40
2) Regina v. Prince (UK. 1875): moral wrong 42
3) People v. Olsen (CA. 1984): legislative intent + strict liability 43
4) MPC Mistake of Fact 44

Mistake of Law—MPC Approach 46

2) Mistake of different law 46
3) Mistake of same law 47
4) People v. Marrero (NY, 1987): judicial reliance 49

1
 5) Regina v. Smith (1974): mistake of different law 47
6) Cheek v. United States (US 1991): law provide defense 49
7) Lambert v. California (US. 1957): Due Process Defense 50

STRICT LIABILITY 54

MPC Approach 55

Common law 55
3) Morissette v. United States (US. 1952): public welfare offense 56
4) United States v. Balint (US. 1922): balancing hardship; malum prohibitum 56
5) United States v. Dotterweich (US. 1943): relation to public danger 57
6) Staples v. United States (US. 1994): alerting circumstance 58

CRIMINAL HOMICIDE 58

Common Law Approach 59

Willful, Deliberate and Premeditated Killing 60

Voluntary manslaughter 64
1) Provocation Formula: 64
2) Extreme Emotional Disturbance. MPC 67

Extreme Reckless/Depraved Heart Murder 69

2) Elements: 69
United States v. Fleming (4th Cir. 1984): crazy drunk driving 71
i) Transferred extreme recklessness 73
4) MPC Approach 73

Felony Murder Rule 73

4) “Actor/accomplice, in furtherance of the felony”: 75
5) “Cause the death” 77
6) “In the commission or attempted commission of felony”: 78
7) Inherently dangerous felony 79
8) Does not merge 82

MPC Approach of Criminal Homicide 86

ATTEMPT 88

Mens rea—intent to commit target offense 89

2) Result  purpose 89
3) Circumstance  match the MR required for AC in the target offense 92
4) Conduct  purpose 92

Actus rea—beyond mere preparation 93

4) Proximity test 94
5) Equivocality test 96
6) Substantial step test 97

2
Impossibility defense 100
2) Traditional categories 100
3) Modern/MPC approach 102

ACCOMPLICE LIABILITY 107

Mens rea: intentionally aid or encourage the commission of target offense 108
1) Conduct: purpose to aid or encourage conduct of primary actor 108
2) Result: match the MR of result in target offense 110
3) Attendance circumstance: at least match MR of circumstance in target offense 111
4) Reasonably foreseeable consequence doctrine 112

Actus rea: aid or encourage 113

2) State v. Gladstone (Wash. 1970): vital nexus of encouragement 114
3) Wilcox v. Jeffery (Eng. 1951): thin actus reus 115
4) State v. Tally (Ala. 1894): minimal aid is enough 116
5) Attempted complicity 116
6) When NO crime committed 116

Relationship b/w liability of accomplice and primary actor 118

1) Defenses of principal 118
c) State v. Hayes (Mis. 1891): element-based defense 118
2) Acquitted principal 120
3) Lesser culpability of principal 120
4) Greater culpability of principal: instigator can be lesser crime than perpetrator 121
5) Accomplice is victim 121

CONSPIRACY 122

Actus reus: agreement b/w 2 + one overt act 123

1) Actus requirement 123
a) Agreement by two or more person to commit a crime 123
2) Perry v. State (Fa. 2014): proof of “agreement”: 123

Mens rea: intent to agree and to further the criminal enterprise 125
2) People v. Lauria (CA. 1967): knowledge PLUS 125

Pinkerton doctrine 126

2) Pinkerton v. United States 127
4) State v. Bridges 128
5) Policy behind Pinkerton doctrine 128
7) Limitation for Pinkerton liability 129

The Duration of Conspiracy 130

1) Termination 130
2) Withdrawal 131
3) Renunciation defense 131

The Scope of Conspiracy 131

1) Multiple Conspiracies vs. Single Conspiracy 131
2) Test for single conspiracy 132
3) Bilateral approach 132

3
 9) Unilateral approach (MPC): 134
4) Multiple objectives 136

Parties: when one of 2 parties is immune 136

1) When one of 2 parties feigned agreement 136
2) When one of 2 parties is victim 137
3) When one conspirator is acquitted 138
4) Attempted conspiracy? 138

JUSTIFICATION 138

Self-defense 138
General rule 138
Special rules 140

Necessity: “Choice of Evil” 146

1) Generic formulation 146
6) Limits on reach 147

EXCUSES 149

Duress 149
1) Generic formulation 149
2) Choice of Evil vs. Duress 149
3) State v. Toscano (NJ. 1977): 150

Intoxication 152
Voluntary intoxication 152
Involuntary intoxication 154

Insanity 156
1) The M’ Naghten Rule – majority 156
3) Meaning of “wrong” – split of courts 158
4) MPC Approach – minority 159

1) Final:
a) Hard copy open book
b) Essay Qs
i) Text fully out, not pullet point
c) T/F
d) Will provide state law
e) Look at charge → elements analysis (look at the MPC/relevant statute language and do
elements analysis with each required element (AR & MR))
2) Progress of law in Euclidian metaphor
a) A point of law = one case (zero dimension)
b) A pattern of many rules = line of cases (one dimension) 
c) Other aberrating cases = competing line of cases (two dimension)

4
 d) Outside spheres influencing the law = other areas like change of values, science, technology,
historical events (three dimension)
3) Criminal vs. Civil law
a) Crim depends more on statutes, civil law depend heavily on common law
b) where evolving social values intersect and clash
c) place of confrontation b/w good and evil
i) consider mental culpability
d) more severe punishments related to severity of the matter
e) Crim: higher procedural standard of evidence—beyond reasonable doubt
f) Penalties: torts-damages, crim-sentence of jail time.
g) special procedural protections: ex. right of jury and trial
4) Overview of course:
a) teach crime by crime + crosscutting defenses &justifications
5) Model Penal Code (MPC): not law. Persuasive source of the covtrines and principles
6) Policy:
a) Reinforcement of community morality
b) the need to shape, control, and constrain the power wielded by decisionmakers.
i) the decision rule should define, as clearly and precisely as possible

Purpose of criminal sanction

1) Why Punish?
a) Incarceration 监禁, fines, probation 缓刑, community service, mandatory treatment
programs, and other restrictions on behavior.
b) General justifying aim (social institutions for punishment
c) Distribution (punishment of particular individual)
d) Degree (amount of punishment in a case)
2) Regina v. Dudley and Stephens (1884):
a) Fact: cannibalism in the high sea
i) Dudley (captain), Stephens (first mate), Brooks (able seaman), Richard Parker (young,
ordinary seaman)
ii) 4 seamen were cast away in a storm on the high seas 16,00 miles away from the Cape of
Good Hope, only having 2 one Ib tin of turnips and some rain collected with oilskin
capes. They encountered a turtle on the 4th day and relied on it until the 12th day. On
July 24th, Dudley proposed cast, Stephens assented, Brooks dissented. Then Dudley
proposed to kill and feed on Parker, Stephens assented, Brooks dissented, and Parker
was not told. On July 25th, Dudley took a knife into Parker’s throat. The three fed on
corpse of Parker for 4 more days to be saved by a passing vessel. It’s said Parker was
too weak to survive though he’s not killed, b/c he had been drinking seawater and
famine.
b) Procedure: special verdict: Jury give the conclusion of the fact and Court give opinion on it.
c) Issue:
i) Murder: deliberate killing

5
 (1) Actus rea: Dudley put knife into Parker’s throat voluntarily, causing Parker’s death
(2) Mens rea: with malice (intentionally) to feed on Parker’s flesh
ii) Defense:
(1) Self-defense: not really b/c Parker is not attacking others, their dilemma is not
caused by Parker but by the storm
(2) Necessity: is choice of evil—when should we sacrifice others to save ourselves?
(a) justify deliberate killing if there’s no appreciable chance that their lives can
otherwise be saved
(b) Self-preservation—no other choice except killing Parker in order to save own
lives but can’t kill an innocent to save oneself by killing innocent, can save
more life (other people’s lives) But no consent from victim
d) Holding: wilful murder w/o legal justification & ordered death sentence of Dudley and
Stephens, but Queen Victoria pardoned them to 6-month sentence
(1) Dudley was convicted as murder
(2) Stephens as accomplice of Dudley also guilty of murder
(3) Brooks did not consent but did not stop Dudley either
(a) You can be guilty for did not act if you have a pre-existing duty
(b) Duty to take care of the lower level seaman?
(4) Lord Hale: “self-defense”: Kill assailant but not the innocent person then present
(a) extreme necessity of hunger does not justify larceny (unlike Grotius &
Puffendorf)
(5) Lord Bacon: Necessity carrieth a privilege in itself.
e) Reflect different morals
i) Custom of the sea: it was common to feed on human flesh to survive once lost in the sea
ii) Modern moral: no cannibalism at any time
iii) Self-defense: Any reasonable legal system must provide for self-defense as a
justification
(1) Fail: Parker was not threatening?
Retribution 因果报应 —Immanuel Kant—fault/blame perspective — backward looking
1) Purpose: Justice, NOT utility for broader society. If commit a crime. Need to pay the
consequences
a) Punishment justified by Seriousness of the offense committed, rather than by the future
benefits to be obtained by punishing.
i) Only punish f the act was ,orally wrong (look at intent/act)
2) The deterrent should NOT be considered. One man shouldn’t be treated as a tool for the benefit
of society, should only be punished if he deserves it (did sth with fault).
a) Not interested in cost/benefit
3) Focus on the fault of culpability (?Moral culpability) of sb who commits a crime
4) Problem:
a) Criminals don’t benefit from society and retributivism makes them out to be evil
b) No one following the “rules” is jealous of criminals for getting to do their crimes
c) How does the criminal’s suffering pay anything to society?
d) Not true that anything that hurts someone = repayment

6
 e) Call for punishments that harm more than they help
f) Doesn’t always deter future criminal conduct
5) Positive retributivism: social must punish the blameworthy
a) Society must impose punishment equivalent in severity to the seriousness of the crime
b) Guilt is sufficient for punishment
Negative retributivism: use as a constraint where moral guilt is not automatically a sufficient
condition of just punishment
c) One cannot get more than they deserve, states can only punish less if they so choose
d) Guilt is necessary for punishment
6) Immanuel Kant: need guilty and punishable before punishment
a) Categorical imperative
7) Michael S. Moore:
a) Retributivism:
i) a retributivist punishes bc & only bc the offender deserves it, punishment is justified by
the moral culpability of those who received it.
ii) 承认按比例 proportional，但是没说具体什么惩罚。不一定是 eye for eye.
iii) Moral desert of an offender is a sufficient reason to punish, not only reason.
iv) not to satisfies the desires for vengeance of their victims.
b) Utilitarian: punishment of past offenses is of greater good of preventing future offense.
8) Herbert Morris:
a) A system which the rules establish a mutuality of benefit and burden and in which the
benefits of noninterference are conditional upon the assumption of burdens.
i) Punishment as assurance to who voluntarily comply with the rules
ii) Sanction are attached to noncompliance with the primary rules so as to induce
compliance
iii) It is just to punish those who violated the rules and caused the unfair distribution of
benefit and burdens.
9) Jeffrie Murphy: “gentlemen’s club”
a) Before using punishment, we need to make sure society is in a right way that they do benefit
from punishment?
10) John L. Mackie: Punitive retribution is the repaying of harm with harm, as reward is the
repaying of benefit with benefit.
a) Repayment? Making criminal suffer or deprived doesn’t necessarily followed repaying his
debt to society.
b) Annulment? Right been restored is not by repayment or restitution but by trampling on the
previously crime.
c) Fair play? Restore the unfair advantage by breaking the rules.
i) The point of punishment is not this but the wrongness of his act and the harm that he
has done or tried to do.
11) Positive & negative retribution
a) Positive: punishment equivalent in severity to the seriousness of the crime
b) Negative: seriousness of the offense sets an upper limit to permissible punishment but does
not require the state to punish to that extent.

7
 i) How to set the upper limit?
(1) public opinion surveys
(a) desert is opaque: Racial bias, fear, disgust, and other arbitrary factors can shape
desert assessments, but they do so under cover of a seemingly legitimate moral
judgment.
12) Punishment is proportional to moral culpability of the actor
a) “We punish because, and only because he deserves it”
b) Guilt is necessary for punishment but not sufficient
i) How can you blame another if you will make the same mistake?
c) Moral culpability is subjective and largely depends on the context
13) Concept of equality: punishment can’t be too severe to exceed severity of crime
14) Right of retaliation: if you kill another, you kill yourself—whoever commit murder must die
Mixed Theory: utilitarian but limited by retributivism
1) to better society but limited by how blameworthy the person is
Utilitarian 功利主义—Jeremy Bentham——threat/risk perspective— forward looking
1) Punishment is justified bc it has a useful purpose of changing society (threst), punishment for
deterrence
2) Punishment is evil, should only allowed when it’s greater than the things trying to
prevent/provides a social benefit
3) Rule of proportion b/t crimes & punishments
a) For trivial offenses the costs of imprisonment often exceed the benefits of deterrence
4) Forward Looking-Focuses on the impact on society (punishment useful for deterrence)
a) Punish to exclude greater evil & discourage certain behavior
i) Death penalty would send signal to others of deterrence
5) Bentham 边沁: (cost-benefit approach) Total happiness of the community: evil of punishment
>evil of crime
a) Jeremy Bentham-Crim Law is a choice of evils because it stems from an evil action with an
evil punishment
6) Problem
a) Don’t know how to measure the value of individual’s life.
b) Punishment of innocent people for society
c) Disproportionate punishment if the costs don’t outweigh the benefits
i) Calculation of cost and benefit ---- if creating more evilness (punishment) than the
evilness (crime) it’s trying to prevent?
7) Incapacitation: to minimize future threats by putting dangerous people into prison or death
i) but what if killing one person can save more people?
8) Rehabilitation: change their nature to serve the greater good for actor and society (or exclude
greater evil)
9) Deterrence 震慑: to deter specific and general bad conducts and regulate people’s behaviors
a) make value of pain (punishment) > value of pleasure (crime)
b) though it may not eliminate similar conducts in the future, it can stipend the will of people
approaching to those conducts
c) When 2 offenses in conjunction the greater offense should have the more severe
punishment so the offender will stop at the less sever offense & not go further

8
 i) If you punish someone more for killing 5 people than 1, there’s something stopping
them from going further and killing 5
Mixed theory: option for authorities to act on different theories when necessary
1) Purpose of punishment is utilitarian (to reduce crime/help society) within retributivism limits
(punish only if the criminal committed the crime, punish in proportion to the crime, and only if
doing so will deter the crime)
a) Pure utilitarianism can require extremely severe punishments disproportionate to a
defendant’s blameworthiness, merely because those punishments produce some beneficial
consequence for society. (Or too lenient)
b) Pure retributivism: might do more harm than good
2) Social benefit is a necessary but not a sufficient condition of just punishment, and likewise,
desert is a necessary but not a sufficient condition of just punishment.
3) Important to consider deterrence, incapacitation of the offender, & rehabilitation of the
offender
a) Criminal law looks both forward & backward

Element of Crimes
1) Three foundational principles
a) Legality: to give fair warning of the nature of the conduct declared to constitute an offense
i) nulla poena sine lege: no punishment without law
(1) value it serviced.
(a) Need to give individuals fair warning as to the conduct that could subject them
to prosecution.
(b) The need to control discretion of police/prosecutors/juries.
(2) Bar retroactivity and vagueness requires previously established law & clear terms
(a) If no clear standards, people can’t know and predict.
(3) Use norms to fill in the blank?
ii) legislatures create crime, not Judicial crime creation.
iii) Fair warning should be given in language that common moral for understand, to make
the warning fair. What makes it fair, clarity.
b) Culpability 有罪: to safeguard conduct that is without fault from condemnation as criminal
c) Proportionality: to differentiate on reasonable grounds between serious and minor offenses
2) Legality:
Commonwealth v. Mochan (1955) (phone call case)
FACT: D was charged with making numerous telephone calls (party line) to married women
Zivkovich at all times of day and night to incite her to commit adultery.
Trail court: tried before a judge without jury. convicted of a misdemeanor.
a) D appealed, arguing that the offense he was charged with did not constitute a
misdemeanor at common law nor criminal offense under Pennsylvania statute.
ISSUE: Can a person be prosecuted as a criminal under the common law for committing an
offensive act not defined as a crime by statute?
HOLDING: Yes.

9
 REASING:
a) Although the indictment charging Mochan with committing unlawful acts is based in
the common law and not included in any statutory text
b) “Whatever openly outrages decency and is injurious to public morals is a
misdemeanor at common law.”
c) Mochan’s criminal intent was shown by his overt acts beyond the mere verbal
solicitation of adultery to Zivkovich. Mochan’s language and statements injuriously
affected public morality because the operator or anyone else on Mochan’s four-
party telephone line could have heard what he was saying. Undoubtedly, at least two
individuals at Zivkovich’s house heard the conversation.
d) The charges in Mochan’s indictments identify the offense as a common law
misdemeanor and the testimony established his guilt.
DISPOSITION: Affirmed
DISSENT: (Woodside, J.)
a) Mochan’s conduct was reprehensible, but not a crime punishable under
Pennsylvania law.
b) One of the most important functions of a legislature is to determine what acts
“require the state to interfere and punish the wrongdoer.” It is the legislature’s job
to decide what conduct injures public morality. The court shouldn’t make that
declaration on their own.
Note:
a) Counter argument: airplane has wheels and can drive on ground.
b) What about a motor wheelchair/motor skipboard
1) Judicial crime creation?
a) Felony used to be created by English Judge.
b) Most American jurisdictions have now abolished the common-law doctrine that conferred
on courts an openly acknowledged power to create new crimes.
c) General criminal law, the SC: legislature create, and opposite to common-law crimes.
i) To provide more notice to individual citizens
ii) Ensures democratic accountability/appropriately separates government powers
between branches.
iii) Minimizes discretion that could lead to abuse
iv) Increase uniformity and deterrence.
d) 但是现实生活中，往往会和检察官 bargain，而不 trail。
e) But is constitutionally permissible under some circumstances.
McBoyle v. United State (1931)
FACT: McBoyle (defendant) was convicted of transporting an airplane from Illinois to
Oklahoma that he knew was stolen. McBoyle was sentenced to three years imprisonment
and ordered to pay a $2,000 fine in violation of the National Motor Vehicle Theft Act (the
act). McBoyle appealed and his judgment of conviction was affirmed. The United States
Supreme Court granted certiorari to determine whether an airplane is a “vehicle” under the
act.
ISSUE: Must criminal state give clear notice of the conduct it prohibits?

10
 HOLDING: Yes.
REASING:
a) A law must give fair warning to the public of the conduct it aims to prohibit in
language that can be easily understood.
b) When a statute’s language evokes a clear picture in the public mind, the statute’s
reach shouldn’t be extended beyond that understanding.
DISPOSITION: Reversed
a)
2) Note: Interpretation of the crime:
a) The text of the statute itself
b) Legislative intent
i) The meaning what the legislator intent when creating the law (ex. The dictionary
version back then) or the meaning been used right now? 有些法官会 prefer right now。
(但是我个人觉得应该是 back then)
ii) Also look the context.
(1) Clear picture in the public mind
iii) Legislative history

Yates v. United State (1931)

FACT: John Yates (defendant), a commercial fisherman, caught undersized red grouper in
federal waters in the Gulf of Mexico in violation of federal conservation regulations. To
prevent federal authorities from confirming that he had caught the fish, Yates ordered a
crew member to toss the fish back into the water. As a result, Yates was charged with
violating a provision of the Sarbanes-Oxley Act (Act), 18 U.S.C. § 1519, which criminalized
the destruction or concealment of any record, document, or tangible object to obstruct a
federal investigation.
Procedural History:
a) Trail:
i) D: § 1519 did not apply to throwing fish overboard in a commercial-fishing
context.
ii) US: fish were a tangible object within the purview of § 1519
iii) Judge: “tangible object” is a term “independent of “record or document.” Yates
was convicted and sentenced to 30 days of imprisonment. Yates appealed.
b) CoA: Affirmed
c) SC: Granted certiorari to review.
Argument:
a) US: §1519 extends beyond the principal evil motivating its passage [to impose] a
general ban on the spoliation of evidence, covering all physical items that might be
relevant to any matter under federal investigation.
b) D: targets not all manner of evidence, but records, documents, and tangible objects
used to preserve them.
ISSUE: Does the term tangible object in §1519 of the Sarbanes-Oxley Act encompass any
discrete thing that possesses physical form?

11
 HOLDING: No.
REASING:
a) The term tangible object used in §1519 refers to an object used to record or
preserve information and doesn’t include fish, must be one used to record or
preserve information.
b) [t]he plainness or ambi- guity of statutory language is determined [not only] by
reference to the language itself, [but as well by] the specific context in which that
language is used, and the broader context of the statute as a whole.”
i) the context of §1519 tugs strongly in favor of a narrower reading.
ii) noscitur a sociis:
c) The rule of lenity: ambiguity concerning the ambit of crim- inal statutes should be
resolved in favor of lenity.
DISPOSITION: Reversed
CONCURRING: (Justice Alito)
a) where noscitur a sociis and
b) ejusdem generis: general words following a list of specific words should usually . . .
mean something “similar.”
c) If this two apply, “known unknowns” should be similar to known knowns, i.e., here,
records and documents.
d) §1519’s list of verbs: “alters, destroys, mutilates, conceals, covers up, falsifies, or
makes a false entry in.” One can’t make a false entry in a fish. “falsifies” are also
closely associated with filekeeping.
e) §1519’s title: “Destruction, alteration, or falsification of records in Federal
investigations and bankruptcy.” This too points toward filekeeping, not fish.
DISSENT: (Kegan, J./J Scalia/ J Kennedy/ J Thomas)
c)
2) Two components of every crime:

a) Actus reus: the guilty act

12
 i) Conducts: required physical activity - a voluntary action or omission
ii) Circumstance: required external conditions
iii) Result: required consequence of the results
(1) Only some crimes have result element, don’t always need result!!
(2) Result can come later on (and happen after mens rea)
(a) ex. a person may not immediately die from a lethal wound, but killing is still
committed at the moment of injury
(3) Causation: when the crime has a “result” element, there must be a causal link b/w
conduct and result
b) Mens reus: the guilty mind
i) ex. malice, intent, knowledge, recklessness, negligence
ii) Temporary concurrence -
(1) Guilty conducts and guilty mind must at least temporarily take place together
(a) ex. if A shots B with intent to kill B and then regret and not want B to die still
murder because A had intent to kill at the time he shots B
iii) Result can come later (no need to happen simultaneously as conducts or guilty mind)
(1) ex. it may take time for person to die
c) must be temporal concurrence b/t AR & MR
i) must have required MR at the time of the AR
ii) don’t need temporal concurrence b/t the required MR and the result.
d) Year-and-a-day rule: if you try to harm/kill someone (or through
negligence/recklessness) and they don’t die within a year you’re not guilty because you
can’t be certain that their death was from the criminal actions
3) Why require actus rea?
a) Nobody is punished solely for his thoughts
i) If A planned to place a bomb but did not take any actions (even attempted actions) yet,
he’s not liable b/c every crime requires some conducts
(1) you’re not responsible for “thought crimes” because you can always change your
mind & not held liable for thoughts
b) Policy:
i) Difficulty of proof of people’s mind or b/w daydream and fixed intention
ii) Great administrative burden b/c everyone has had some evil thought at some point—all
humans will be criminals
iii) There may be a change of mind before actual commission of crimes
iv) Thoughts alone has No real harm on society & don’t produce harm  utilitarian won’t
punish b/c cost > benefits
v) Requirement of identifiable occurrence minimizes multiple prosecution and
punishment
4) Example: larceny 盗窃
a) Definition of larceny (ex. smash other’s book against other’s will)
i) Actus reus: 1) trespassory 2) taking and 3) carry away 4) personal property 5) of
another
(1) Each element must be proven beyond reasonable doubt
(2) Conducts:

13
 (a) “Taking”: catch and asserting dominion over it—can be w/o actual moving
(b) “Carrying away”: moving the property away
(3) Attendant circumstance:
(a) “Trespassory”: against the will and against the possession
(b) “Personal property”
(c) “Of another”
(4) NO result element
(a) Distinguish b/w conduct and result: property being taken or carried away is
conduct, not result
ii) Mens reus: 1) intent to permanently deprive the other’s property (freefloating MR)
(1) Only need “intent” to permanently deprive, doesn’t need the actual action of
permanent deprivation
(2) But how to know people’s mind?
(a) It must be shown by some evidence/actions showing people’s culpable mind
iii) Interaction b/w actus reus and mens reus
(1) There must be culpable mind to make “taking & carrying away other’s property”
culpable
(2) How far the book must be moved to prove one has “intent to permanently deprive”?
iv) Defense: even if all actus rea and mens reus elements are met, one may not be guilty
(1) ex. Duress
v) HYPO:
(1) What if you take someone’s book, thinking it was yours? →All AR met, but No mens
rea. → not crim.
(2) What if you intend to steal the book, but only move it a centimeter?
(a) MR is met. Whether AR is met depends on what carrying away means. looking
at caselaw we see the slightest movement counts

Actus reus 犯罪行为

Words:
1) Actus reus the commission of some voluntary act that is prohibited by law
2) Mens rea 犯罪意图: D’s state of mind
Actus reus: ex. larceny
1) Conduct (voluntary)(Co) (Action/Ommission): ex. Taking/carrying away
2) Circumstance (Ci): ex. Trespassory personal property of another
3) Result: ex. -
a) Not always Required by legislature.?
b) Causation between conduct & result
Mens rea: concurrence with actus reus
1. Voluntary Act
1) A person is not liable for his involuntary criminal conducts
a) Policy:
i) Retribution: people is not morally blameworthy for his involuntary acts
ii) Utilitarian: law can’t deter future crime when crime is committed involuntarily

14
2) Model Penal Code:
a) Persuasive authority, cited by jurisdictions frequently to indicate their own view
b) No force of law itself, only a model for statutory recodification of state criminal laws
c) A very successful model, substantially affect state statutory reforms
3) MPC 2.01(1) Voluntary Act or Omission
a) “A person is not guilty of offense unless his liability is based on conduct which include A
i) voluntary act
(1) “act”
(a) = a bodily movement (whether voluntary or involuntary). MPC 1.13
(b) = possession (in some circumstances) MPC 2.01(4)
OR
ii) The [voluntary] omission to perform an act of which he is physically capable”
(1) “omission”: failure to act. MPC 1.13
(2) “voluntary”: a bodily movement that’s a product of the effort or determination
of the actor, either conscious or habitual. MPC 2.01(2)
(a) voluntariness of conduct is universal assumption of criminal law. Martin
(b) Really thin and easy to meet—only one act needs to be voluntary
(c) Act and voluntariness are separate
(i) initial question is whether someone actually acted, then ask whether it is
voluntary.
b) Burden of proof: prosecution needs to proving the act (typically its voluntary character)
beyond reasonable doubt.
i) But sometime legislature has some flexibility to convert mens rea requirement from
“element” of an offense to affirmative defenses → shift to D.
4) MPC 2.01(2) Involuntary Act: an act done by the muscle without any control by mind.
a) A reflex or convulsion (Epilepsy)
(1) ex. People v. Decina (1956. P231): a person’s movement during an epileptic seizure
is involuntary, but may be liable for earlier voluntary acts of choosing to drive while
knowing he’s subject to seizure. (deliberately took a chance by making a conscious
choice of a course of action) --- [G]
b) A bodily movement during unconsciousness or sleep (Automatism 自动症/Somnambulism
梦游)
(1) Involuntary unconsciousness is complete defense Newton.
(a) Conduct must be voluntary, if not aware → not voluntary
(2) Acts in total sleep not voluntary. Cogdon (woman dreams daughter has spiders on
her, kills daughter with axe while sleeping to get the spiders off)
c) Conduct during hypnosis 催眠 or resulting from hypnotic suggestions
(1) But most jurisdiction held opposite positions from MPC
d) A bodily movement that’s otherwise not a product of the effort or determination of the
actor, either conscious or habitual.
(1) Habitual action is voluntary, even if done without thought/unconscious
(a) MPC states “conscious or habitual”, thus implying that both are voluntary。

15
 (i) Even when unintentional, action is a product of the effort or determination
of the actor.
(b) ex. a person decides to stop saying “you know” before every sentence, but then
continues to do so despite her best intention her slip-up is voluntary act
(c) ex. a person is driving on an interstate when his cell phone rings, and without
thinking, he reaches for the phone, causing an accident his act is voluntary
(2) Possession is an act if the possessor knowingly procured/received the thing
possessed for a sufficient period to have been able to terminate his possession
(3) “involuntary”: narrower than ordinary understanding of “involuntary”
(4) An act is not considered involuntary just b/c actor could not remember it nor he
could not control his impulse to do it, nor it’s unintentional or its consequence are
unforeseen
(a) The question is your conscious mind having an effect on the unconscious mind?
(i) Factual in nature?
(b) voluntary act is necessary but not sufficient condition for liability, ex. mens reus,
excuse of duress
(i) “involuntary” act is never blameworthy, but voluntary act is not always
blameworthy
e) Policy: Why a person causes harm can avoid blame?--misfire
i) Action done accidentally or under duress
(1) mitigating the actor’s responsibility or of excusing the act
ii) Action misfires: convulsions, reflex movements, or somnambulism 梦游
(1) Not think about the excuse but believe no human action occurred.
f) Consequence:
i) If D acquitted bc “involuntary” → immediately discharged w/out further supervision.
ii) If D acquitted bc “insanity” → subject to civil commitment / other therapeutic protocols.
5) Concurrence requirement:
a) a link between all three elements of an offense —
i) actus reus (a voluntary act or culpable omission)
ii) mens rea (the defendant’s state of mind) at the time of that actus reus
iii) the result (if one is required) caused by that actus reus.
iv) Ex. State v. 5 Star Feedlot (wastewater came out from ponds bc flooding & kill fish):
involuntary.

6) Martin v. State (Ala. Ct. App. 1944):[Not G]

a) Facts: D is drunk at home and (involuntarily) taken by the police to the highway, where he
uses loud profane language
b) Charge: “Any person who, 1) while intoxicated or drunk, (Ci) 2) appears (Co)in any 3)
public place(Ci) 4) where one or more persons are present(Ci) 5) AND manifest a drunken
condition(Co) by boisterous or indecent conduct, or loud and profane discourse, shall, on
conviction, be fined…”
c) Holding:
i) Voluntary appearance is presupposed under plain language of the statute. Each act
within the crime must be voluntary

16
 (1) Court is infusing into silence statute a background assumption
d) Conflict with MPC 2.01(1): not all proscribed acts of D must be voluntary, only one
voluntary act is required.
i) ex. D can be liable for voluntarily manifesting drunken condition in public
ii) Some jurisdictions only require some of the conduct to require voluntariness
(1) Could argue that he voluntarily started cussing out the window & acting drunk
though
e) Modern application of Martin
i) People v. Low[G]: D was arrested for driving a stolen vehicle and taken to jail, where a
search found drug hidden in one his socks. D was convicted of “knowingly bringing a
controlled substance into a county jail”
(1) D: invoked Martin, argue he had been taken to jail against his will, so he had not
voluntarily committed the required act of “bringing the drug into the jail”, only
“knowing possession”
(2) The California SC upheld the conviction b/c D had a “clear opportunity to avoid the
prohibited act by voluntarily relinquishing the forbidden object before entering jail”
ii) Minority—State v. Eaton[NG]: court follows Martin & reverse drugs-in-jail conviction
(1) “D had no available choice other than to surrender evidence that would convict him
of another crime, thus failing to read voluntariness requirement into the statute
would produce absurd results incompatible w/ principles of criminal law.”
f) Homeless people: LA ordinance makes it an offense for any person to “sit, lie or sleep in or
upon any street, sidewalk or other public way”.
i) US CoA : the state may not criminalized “being” → the state may not punish a person for
who he is, independent of anything he has done.
7) People v. Newton (Cal. 1970):[NG]
a) Facts (conflicting versions): D pulled over & had a hassle with a cop and ended up
shooting/killing the cop. D testified he carried no gun, and the struggle began when Frey
struck him for protesting his arrest, and was shot by Heanes in midsection, felt “a sensation
like boiling hot soup had been spilled on his stomach”, remembered “crawling,” but nothing
else until he found himself semi-conscious at hospital.
i) Medical expert testified: shot in body cavity can cause unconscious and short memory
loss
(1) align with Newton’s story
b) Charge: murder (voluntary manslaughter)
i) D did not even admit that he 1) shot Frey, not to mention whether 2) voluntary or not
c) D’s defense: fail to instruct “unconsciousness” as a defense to a charge of criminal homicide
is prejudicial error
d) Court reversed and remanded:
i) Sufficient evidence to conclude D was unconscious when Frey was shot
(1) “Evidence support inference that Newton had been shot in abdomen before he fired
any shots himself, and Newton’s testimony of his sensations when shot,
supplemented by medical expert’s opinion of nature of abdominal wound,
supported the future inference that Newton was unconscious when Frey was shot”

17
 ii) unconsciousness is a complete defense to criminal homicide (Pen. Code §26)
(1) defense to the voluntary act requirement/actus reus, defense to the voluntary act
requirement/actus reus
(2) unconsciousness include state such as comas, and person is mobile but unaware.
e) Final result: D was not convicted nor acquitted; state just gives up this time-consuming case
8) People v. Decina (N.E. 1956):
a) Fact: D knows he was subject to epileptic attacks or other disorder rendering him likely to
lose consciousness for a long period of time, but still decided to operate his car on a public
highway, suffered an attack that causes his car to drive fast and cause the death of 4 people
b) Charge: criminal negligence in the operation of a vehicle resulting in death:
i) “A person who 1) operate or drives 2) any vehicle of any kind in a 3) reckless or
culpably negligent manner, whereby 4) a human being is killed is guilty of criminal
negligence in the operation of a vehicle resulting in death”
(1) Actus rea:
(a) Conduct: operate or drive (operate ≠ drive, b/c can move a car by towing, only
need to prove one bc “or”)
(b) Circumstance: a vehicle of any kind
(c) Result: a human being is killed
(2) Mens rea: reckless / culpably negligent manner
c) Note: a seizure is an action (not omission), b/c it’s a bodily movement
d) Holding:
i) D was reckless (know the risk) or negligent (should know the risk) when she voluntarily
operates or drives her car, before his involuntary seizure that directly caused the death
of 4 people
(1) = both actus rea (except result, which can come later) & mens rea are temporarily
satisfied at the same time, there is liability
(a) D’s conduct was voluntary when he got in the car and began driving. He had the
required MR when he began driving, which is the required conduct. He does not
need to have the MR at the time of the result. Therefore, D is guilty.
(b) When the guy is seizure, he is unconscious, so the concurrence between actus
rea and Mens rea can’t meet?
(i) No. if all of the element is meet, the result element can come later.
ii) Prosecution can defeat “voluntary act” requirement by expanding the time frame to
earlier actions of the actor
(1) How far back in time should the prosecution be permitted to go?
(a) if court can find a voluntary act, accompanied at that time by whatever culpable
mens rea is required, which in fact and proximately cause some legally
prohibited state of affairs, then D is prima facie liable for it
2. Omission 疏忽 – failure to act
1) No criminal liability for a failure to act unless:
a) the actor has a preexisting legal duty to act. MPC 2.01(3)
i) Liability for the commission of an offense may not be based on an omission
unaccompanied by action, unless:
(1) The omission is expressly made sufficient by the law defining the offense

18
 (a) ex. hit and run
(2) A duty to person the omitted act is otherwise imposed by law
(a) 4 potential source of legal duties in Jones
(i) A statute imposes a duty (of care)
(ii) Certain [but not all] status relationship:
parent-child/spouse-spouse/employer-emplouee
(iii)Contract duty
(iv)Voluntarily assumption of the care of another AND so secluded the helpless
person as to prevent others from rendering aid
(3) US never uses moral duty.
(4) Intentionally creating the need for rescue is always liable & accidentally creating the
need for rescue depends on the state
b) AND the actor is physically capable of performing the act. MPC 2.01(1)
2) Jones v. United States (D.C. 1962)[NG]: 4 types of legal duties
a) Fact: 9-month baby was placed with the D, a family friend. Mother also lived with D for
some time, but unknown how long it last. It’s also unknown whether D was paid to take care
of baby. D has ample means to provide food and medical care & didn’t, resulting in baby’s
death.
b) Charge: involuntary manslaughter
c) Defendant must be under a legal duty/be legal bound to have a duty to act/care
d) App Ct reversed conviction for wrong jury instruction
i) A finding of legal duty is critical element of the crime, the omission of it in jury
instruction is a plain error supporting reversion of case
ii) The jury must find beyond reasonable doubt, as an element of the crime, that D was
under a “preexisting legal duty” to supply food and necessities to the baby to make D
liable for his failure to act
(1) Reflect the general Anglo-American position that criminal liability for omission arise
only when there is a legal duty (torts/other law)
(2) Policy: Why require a legal duty?
(a) To have strict lines for imposing duties (morality is subjective and broad)
(b) Duties encroach on free will, autonomy 自主权 interests,
(c) Due process - crimes need to be defined and give notice of acceptable behavior
(hard to draw the line of fairness, then principle of legality is hard to meet)
(d) judges shouldn’t be creating crimes after the fact b/c criminal law operates
prospectively, not retroactively)
iii) Four types of legal duties:
(1) A statute imposes a duty
(a) Either civil (ex. tort) or criminal law
(2) Certain [but not all] status relationship
(a) Parent to minor child
(b) Spouse to spouse (Territory v. Manton)
(c) Master to apprentice (Regina v. Smith)
(d) Captain to crew and passengers (US v. Knowles)
(e) Innkeeper to customers (State v. Reitze)

19
 (f) NOT b/w sibling, cousins, parents to adult children, adult children to parents
(i) though some states may recognize broader family duties
(3) Contract
(a) contract must be valid and enforceable
(4) Voluntarily assumption of the care of another AND so secluded the helpless person
as to prevent others from rendering aid
e) Analysis: In this case, evidence is in direct conflict.
i) Contractual duty?
(1) Conflict of evidence on whether D was paid to take care the baby OR the mother was
living with D and should take care of the baby
ii) Voluntary assumption and seclusion?
(1) Conflict of evidence on whether the mother lived with them at that time  App Ct
reversed for jury to resolve factual issues
(2) D would not have secluded the baby from the mother if she has lived with them
f) Homicide: If the defendant refused aid with the intention of causing death, or with full
knowledge of a great risk that the decedent would die, then it will be murder.
i) Involuntary manslaughter: D has no intent to kill.
3) Voluntary assumed duty and seclusion of outside help:
a) HYPO: If you are on the beach with many other people. A child is drowning, asking for your
help. You initially volunteered to help but gives up due to some difficulties. Then you watch
the child to drown and died before anyone else can help.
i) Voluntarily assumed care and seclude other to help?
(1) Maybe, if you volunteering to offer help, others may choose not to help & secluded
the child from other help
(a) What would be the impact for ruling liability?
(b) Legal mechanism does not always produce result we expect it to produce.
b) HYPO: Same except if you’re the only person on the beach
i) No legal duty, NOT voluntarily assumed care and seclude other to help
(1) not secluding others from helping since nobody on the beach (nobody can help
anyway)
(2) What if we can prove the kid stopped trying to keep himself afloat because of your
words?
c) HYPO: Same except you see a famous sport player in the water with the child and thus you
did not take any action to help the child
i) NOT voluntarily assumed care and seclude other to help
(1) Not yet taking any action to claim any duty to save yet
(2) In US, there’s no legal duty to rescue another
(a) Largely out of fear of diminished freedom
(b) Only 6 states make it a misdemeanor to refuse to aid person in peril: Minnesota,
Rhode Island, Vermon, Florida, Hawaii, and Wisconsin—Good Samaritan rule
(c) How to explain bystander indifference 冷漠?
(i) Fear of danger and retaliation 报复
(ii) difficulty of quickly selecting best way of intervention

20
 (iii)the presence of other bystander reduces each potential rescuer’s individual
sense of responsibility (free-riding)
(iv)burden of being witness and be relied on by victim
(d) European countries have long used criminal law to enforce a duty to rescue
d) HYPO: Strong goes to office hours and hits his workman with the door. Workman falls out of
the window onto the roof. Strong watches & doesn’t help.
i) Innocent creation of risk→Depends on jurisdiction
e) Michael Phelps pushes his friend in the pool as a joke, thinking he could swim. Phelp
realizes his friend can’t swim and is drowning. Phelps suddenly thinks about all the times
his friend has wronged him and changes his mind, wanting his friend to die. Can Phelps’
actions be the basis for intentional homicide?
i) Yes (IF INNOCENT CREATION OF RISK) there is a temporal concurrence between him
changing his mind & wanting his friend to die
f) HYPO: A accidentally pushes B into the pool, but then just watched B drown and doesn’t
help.
i) This is innocent creation of risk, so it depends on the jurisdiction.
g) HYPO: A wrongfully pushes B into the pool, thinking B can swim. B can’t swim, and A
doesn’t rescue.
i) This is wrongful creation of risk.
h) HYPO: Phelps sees a little kid drowning in pool, thinks it’s funny, watches kid drown → No
general duty to rescue
i) HYPO: Phelps’ little brother? → No special relationship; If he is a lifeguard probably through
a contractual obligation, but not off the clock
j) HYPO: Professional swimmer sees a drowning child and does nothing.
i) No legal duty. Generally, no duty to rescue.
k) HYPO: What if a paid lifeguard sees a drowning child?
i) Yes, there is a legal duty because of contractual relationship.
l) Pope v. State (Md. 1979)[NG]: crazy mother
i) Fact: A young mother has serious mental illness and violent religious frenzy. Pope (D)
took mother and her child into her house, feeds them both and looked after the child. On
Sunday afternoon, mother went into frenzy, savagely beat and tore at her child. Pope
was present throughout but did nothing (did not protect the child, or call the police, or
seek medical assistance). The child died from beating in that evening.
ii) Charge: felony of child abuse in the first degree
iii) A legal duty is necessary to be held liable by an act of omission; taking care of others as
a host doesn’t satisfy this duty
(1) Also need physical ability to do so; Also mother was there & never gave up her duty
of care
(2) Court restates the statute to insert “omission”
(a) “(1) was (a) the parent of, or (b) the adoptive parent of, or (c) in loco parentis to,
or (d) responsible for the supervision of a minor child under the age of eighteen
years, AND

21
 (2) caused, by being in some manner accountable for, by act of commission 委托
or omission, abuse to the child in the form of (a) physical injury or injuries
sustained by the child as the result of (i) cruel or inhumane treatment, or (ii)
malicious act or acts by such person,”
(b) Actus rea
(i) Conduct: cruel or inhumane treatment /malicious act or omission
(ii) Result: cause physical injury
(iii)Attendant circumstance:
1. Parent / adoptive parent / in loco parentis / person who has permanent
or temporary responsibility for supervision of a minor child = One who
has care, custody or responsibility for supervision
2. Minor child under 18
(c) Mens rea: malicious
iv) Court ruled NOT child abuse b/c
(1) Causation: D’s failure to prevent mother’s abuse and failure to seek medical help
despite urgent need cause the future worsening injury which leads to child’s death
(2) Conduct: D’s omission itself constituted cruel and inhumane treatment
(3) But D has not legal duty to care for the child
(a) D is not parent or adoptive parent & no evidence show that she had “the
permanent or temporary care or custody of the child so as to be in loco parentis
(b) The mother (though crazy) is present throughout, D had no right to usurp the
role of the mother even to the extent of responsibility for the child’s supervision
(i) What if the mother physically leaves house & leave child to D?
1. No legal duty, b/c D did not “voluntarily” assumed care, he was only
entrusted by the circumstance & did not seclude the other from child!
a. though one may argue D voluntarily assumed care once she
undertook to house, feed, and care for the mother and child
i. but only act of hospitality and kindness, made out of common
decency and prompted by sincere concern for the well-being of a
mother and her child, subject to the Good Samaritan Law.
(ii) Was the mother really there though? Mentally?
1. Yes, don’t want to encourage people to take other’s children bc people
have mental illness.
(c) Must be a clear source of preexisting legal duty – we want people care for each
other.
(4) Takeaway: even if the mother was effectively absent (insanity), court can still think
D did not voluntarily assumed care
v) Court ruled NOT misprision of felony
(1) b/c misprision of felony is not a chargeable offense in Maryland today
(a) state statute does not have to enact common law crime.
(b) It is not acceptable by today’s standards, should leave it to Legislature.
4) Certain status relationship:
a) Same except if you are the cousin of the child

22
 i) No legal duty, b/c cousins are not a status relationship of legal duty
b) De facto or formal legal relationship?
i) People v. Beardsley: failure to call physician to help an overdosed mistress is not
omission b/c D owed no legal duty to his mistress (who’s not his wife)
(1) This ruling has been widely criticized and outmoded
ii) Slight modern expansion:
(1) People v. Carroll: stepmother was convicted with child endangerment for failing to
prevent her husband from killing his daughter during a week when the daughter
was temporarily visiting them.
(a) Court ruled stepmother owed a legal duty of care to her stepchildren b/c she’s
functionally equivalent of a parent in a familial or household setting
(i) Takes into account modern day reality that parenting functions are not
always performed by a parent
(2) Staples v. Commonwealth (Ky. 2014): imposed duties on any adult residing with a
child who assumes a parent-like role and “substantial responsibility for such
necessities as food, shelter, and protection.”
(3) But not every jurisdiction takes such approach
(a) State v. Miranda (Conn. 2005): Miranda, a live-in boyfriend, failed to protect a
4-month child from a fatal beating inflicted by his girlfriend and child’s mother.
He had taken care of the child and considered himself to be her stepfather while
residing with the family.
(i) Court ruled no legal duty b/c parental liability should not be extended, on a
case-by-case basis, beyond the clearly established legal categories of parent
or legal guardian.
c) When the parent herself is a victim:
i) A mother has duty to protect her minor child from abuse by a third party.
ii) But culpability become clouded when she suffers pervasive domestic violence
(1) Commonwealth v. Cardwell: mother who failed to take any reasonable step to help
her daughter from rape by stepfather was convicted of child abuse by failing to take
sufficient steps to protect her daughter
5) Contractual relationship:
a) Same except if the beach hires a life saver guard
i) The life saver has a legal duty under contract to save drowning child
ii) But if the life saver is off duty  no longer have legal duty under contract
6) Wrongfully vs. innocently putt another on peril:
a) Wrongfully put another on peril legal duty to rescue
i) ex. pushing someone who can’t swim into the pool.
ii) But if the victim drowns, prosecution can argue simply that D killed her by initial
criminal act—pushing her into water, why bother to create obligation to rescue?
(1) imposing a duty to rescue will bring into the picture a much more culpable mental
state and increase the degree of liability of the actor

23
 (2) ex. Ab expert swimmer pushes his friend into deep water and leaves, without
intention to harm his friend who can perfectly swim. Then you change your mind
and want your friend to die. And the friend drowns.
(a) Actus rea:
(i) For action of pushing and leaving in deep water:
1. required mens reu is not met at the time of pushing
(ii) For omission of not rescuing:
1. Required mens rea is met and wrongfully create need to rescue may
create legal duty (and thus omission) in some states
(b) Mens rea: purposefully chose not to rescue his friend b/c wants friend to die
(c) Causation and result: failure to rescue friend caused his death
b) Innocently create the need of rescue depend on the jurisdictions, may have legal duty to
care for that person (reasonable step?)
i) ex. accidentally and without fault bumps into a child while walking slowly done the pier,
knocking child into the water. You then watch the child drown.
ii) ex: Strong opens his door and hits maintenance man in the head, but just watches him
bleed out.
iii) Depend on whether the states agree that duty to act imposed by tort law can lead to
criminal-law duty
(1) Commonwealth v. Levesque (Mass. 2002): D who accidentally started a fire and then
failed to report despite awareness of the danger was held to be involuntary
manslaughter
(2) State v. Lisa (NJ. 2008): D was charged with reckless manslaughter for failing to
summon aid when he knows his girlfriend who he sold drugs, was in grave danger.
(a) court ruled D has no legal duty to his girlfriend b/c tort law does not provide
sufficient notice of duty to which theory of criminal omission liability may attach
iv) If want to ensure conviction, twist that act into a wrongful one
7) Good Samaritan Rule as legal duty:
a) Normally only misdemeanor or petty misdemeanor.
i) Minnesota, Rhode island, Vermont: criminal offense to fail to render aid to a person in
peril.
ii) Florida, Hawaii, Wisconsin: require bystanders to be Good Samaritan, but only in more
limited situation. Not triggered by natural disasters but only when the person in peril is
the victim of a crime. (Florida: only sexual battery)
b) State v. Martinez (Haw. 2003): D failed to seek medical help after his girlfriend severely beat
her daughter, inflicting injured that proved fatal
i) His duty to aid was based on Hawaii Good Samaritan statute
ii) He was convicted reckless manslaughter b/c
(1) the Hawaii Good Samaritan statute imposed a duty to act—legal duty—and his
omission with awareness of the danger to the child, cause her death, was equicalent
to causing the same result by an affirmative act.

Mens rea

24
 Take many forms and may change shape from time to time
 A big step to understand criminal law and decide prosecution
 Mens rea: vicious will – “the culpable mind”: mental state required to turn the act into a crime
 If statute silent → recklessness (except for strict liability)
 Material Element: element that must be proven for the commission of the crime
 Mens rea extends to all material elements unless legislature says otherwise
 Higher culpability levels satisfy the lower ones
 MR is inferred from evidence/fact
 If an example is to knowingly x, x, x, y; the knowingly applies to everything
 Mens rea defense:
 Involuntary act/ duress / legal insanity / accident / mistakes

Common Law Mens Rea

1) General vs. narrow mens rea:
a) General mens rea: moral fault
b) Narrow mens rea: mental awareness or intention that must accompany the prohibited act.
particular mental states in the definition of the crime
i) Criminal law focuses on the narrow version
2) Malice:
a) Regina v. Cunningham (1957) [NG]
i) Fact: D lived in his prospective mother-in-law’s house. The Wades lived in the next door.
Two houses were one and a wall (rubble loosely cemented) dividing the building. D
wrenched the gas meter and stole it for 8 shillings. He threw the gas meter away but did
not turn off the gas, causing a very conservable volume of gas escaped, some of which
seeped through the wall and partially asphyxiated Mrs. Wade, who was asleep in her
bedroom next door, with the result that her life is endangered.
ii) MR needs to be applied to each element individually. Recklessness required for the
actus reus of this crime
iii) Charge: “Unlawfully/Maliciously administer to or cause to be administered to or taken
by any other person any poison or other destructive or noxious thing, so as to endanger
the life of such person / inflict any grievous bodily harm”
(a) Mens rea: malicious (must be concurrent with conduct)
iv) Trial court’s instruction: “malicious” = “wicked”
v) App Ct’s opinion:
(1) “malicious” = reckless = foresight of consequence prevailing view in common law
(a) Actual intention to do the particular kind of harm that was done
(i) = whether D intent the gas to asphyxiate Mrs. Wade
(b) OR recklessness as to whether such harm should occur or not—the accused has
foreseen that the particular kind of harm might be done and yet has gone on to
take the risk of it
(i) = whether D know his removal of the gas meter might cause injury to
someone, but still removed it
1. Should’ve foreseen? No, this is negligence

25
 a. Aware the risk of the gas will leak.
(ii) jury need to decide following factual issues conviction quashed
1. Did he intend to steal the gas meter and release the main supply of gas
into the house?
2. Did he know the wall is loose and gas can pass through the wall?
a. Fact: the gas is heavier than air can go down into the basement.
3. Did he know Mrs. Wade was at home asleep at that time?
(2) Purpose to steal from the gas meter didn’t transfer into the mens rea of harming
the woman
(a) Need mens rea with respect to the actus reus that occurred
(b) Not guilty because wasn’t aware of the risk-just negligent
b) Regina v. Faulkner (1877):
i) Fact: D, a sailor, went to the hold of his ship to steal some rum (b/c all sailors are
alcoholic) and lit a match in order to see better in the dark. Some of the rum caught fire
and the fire spread, completely destroying the ship.
ii) Like Cunningham. MR needs to be there for each element. A D guilty of one actus reus
cannot be convicted of collateral from this act without intent (with the exception of
felony murder)
iii) Charge: “malicious setting fire to the ship”
(1) Mens rea: malicious
iv) Trial court’s instruction: “malicious” = no need to show any mental state/no mens rea
(1) Judge instructed that “Although D had no actual intention of burning the vessel, if he
was engaging in stealing the rum, and that the fire took place, he ought to be guilty”
v) App Ct opinion on “malicious”:
(1) The act done must be in fact intentional and willful, which may be held to exist or be
proved by the accused knew the injury would be the probable result of his unlawful
act, and yet did the act reckless of such consequence
(a) = awareness of the risk that consequence may flow from such risk and risk it =
Cunningham’s “foresight of consequence”
(b) mental state is required for “result” element = Cunningham
(c) “Probable result” might be is stronger than “might be done” in Cunningham
(i) Common law might have different definition of the words, problem in 20 th
century
vi) Result required by statutes: endanger the person’s life or inflict bodily harm?
vii) D didn’t realized the gas will leak
(1) Less than “should be aware”?
viii) Why Cunningham & Faulkner both give “malice” a narrow meaning?
(1) To distinguish from sailors who deliberately set fire on the ship
3) Specific vs. General Intent:
a) They are source of confusion & they’re used inconsistently and misleadingly
b) Specific intent:
i) Action done with some specified further purpose
(1) ex. “burglary 入室盗窃” requires a person break and enter a structure “with the
further objective of committing a felony inside”

26
 (2) ex. “assault with intent to kill” requires a person commit battery 殴打 upon another
“with further purpose of killing him”
ii) OR liability requires awareness of attendant circumstance
(1) ex. Bigamy 重婚 requires actor to intentionally remarry another, knowing he’s still
married to his spouse
c) General intent:
i) Actor performs an intentional action
(1) ex. trespass only need actor to act intentionally in breaking into a building
ii) Awareness of attendant circumstance need not be proved
4) Proving mens rea:
a) Prosecutor must prove mens rea indirectly, through so-called circumstantial evidence and
the inferences one can draw from it
i) Facilitated by various presumptions
ii) Strict limits on use of mandatary presumptions:
(1) = jury is required to draw in absence of contrary evidence
(2) only constitutional if over all criminal cases in general, presumed fact will be
present when the fact used to trigger that presumption is present
(a) ex. one is presumed to intend the natural and probably consequence of his act 
held unconstitutional in Francis v. Franklin, b/c not always present
iii) More flexible in use of permissive inference
(1) = jury is permitted but not required to draw after informed by the judge
(2) allowed whenever the conclusion is more likely than not to be true under the
circumstances of the particular case
5) Civil vs. Criminal Negligence:
a) Negligence is decided by an objective standard that uses what a reasonable person would
think in the actor’s situation
i) Like other common law terms, it lacks precision and court often disagree about what it
means—criminal or civil negligence?
ii) Civil negligence: the failure to aware the risk is “any” deviation from reasonable person
iii) Criminal negligence: failure to aware risk is “gross” deviation from reasonable person
b) Santillanes v. New Mexico (NM 1993)[NG]:
i) Fact: D cut his 7-year-old nephew’s neck with the knife during an altercation/fight
ii) Criminal negligence is a higher standard than civil negligence
iii) Charge: “negligently causing a child to be placed in a situation that may endanger the
child’s life or health”
(1) Mens rea: “negligently”
iv) Trial court’s instruction  civil negligence
(1) “An act, to be negligence, must be one which a reasonably prudent person would
foresee as involving an unreasonable risk of injury to himself or to another, and
which such a person, in the exercise of ordinary care, would not do”
v) Supreme court’s position  criminal negligence

27
 (1) “When moral condemnation 谴责 and social opprobrium 耻辱 attach to the
conviction of a crime, the crime should reflect a mental state warranting such
contempt”
(2) “We construe the intended scope of the statute as aiming to punish conduct that’
morally culpable… and interpret the mens rea of element in the child abuse statute
to require a showing of criminal negligence, instead of ordinary civil negligence”
(a) Civil definition doesn’t get us there. Rejecting the civil negligence saying that the
criminal negligence without telling us what exactly what it is
(3) Criminal negligence requires more culpability than civil negligence because the
punishment is much higher
(a) State of mind (gross deviation)
c) State v. Hazelwood (Alas. 1997)[G]
i) Fact: D, the captain of an oil tanker, ran his ship aground on a reef, causing 11 million
gallons of oil spilled into the ecologically sensitive waters.
ii) When society needs to deter horrible & egregious conduct, sometimes using civil
negligence is appropriate
iii) D was charged Alaska statute offense:
(1) “Any person negligently discharges, cause to be discharged, or permits the discharge
of petroleum upon the waters or land of the state except as the department may by
regulation permits”
iv) App court’s instruction  criminal negligence
v) Sup court’s position  civil negligence
(1) An outlier position taken only for social aims, will cause people to take extra care
(2) Utilitarian: court want to deter future danger action in dealing with large amount of
oil for the safety of the society, focus on threat rather than the fault.
(a) But how could D be deterred if D wasn’t aware of the risk at all? Induce careless
(i) “Legal regulations not only operate through offender’s conscious reason…”
(ii) “Even when an offender does not realize that his conduct is wrongful, he can
be made to take care.”
(3) Difference b/w Civ v. Crim negligence:
(a) For both, a person fails to perceive a substantial and unjustifiable risk that a
particular result will occur
(b) But criminal negligence requires a greater risk—of such nature and degree that
the failure to perceive it constitutes a gross deviation from the standard of care
that a reasonable person would observe in the situation.
(i) Use criminal negligence to get people that are outliers & punish them for
being blameworthy
(ii) Use utilitarianism with civil negligence to deter further
6) When statute is silent:
a) Elonis v. United States (US. 2015)[]:
i) Fact: After his wife left him, Elonis started posting on Facebook rap song and words
containing graphically violent language and imagery. D includes disclaimers that his
post were fictious and therapeutic for him, but the targets of his posts say them
differently: “I really, really think someone out there should kill my wife…and to go on

28
 Facebook and say the best place to fire a mortar launder at her house would be from…”.
After viewing the post, Elonis’ wife requested and received a court order of protect &
Elonis responded by posting again: “is the order thick enough to stop a bullet…”
ii) Defendant must have awareness of threatening nature & mens rea to be culpable. Must
at least have knowledge.
(1) For silent statutes you still need a guilty mind. Usually recklessness or knowledge is
favored in the case of silent statutes, not negligence
iii) Charge: “to transmit in interstate commerce any communication containing any threat
to injure the person of another”
(1) *No mental state is specified in the statute
iv) Trial court’s instruction  App Ct affirmed
(1) “It doesn’t matter what D think…A statement is a true threat when D intentionally
makes a statement in a context wherein a reasonable person would foresee his
target would interpret the statement as an expression of an intention to inflict
bodily injury…”
(a) Requires not guilty mental state strict liability
v) SCOTUS reversed:
(1) “Elonis should apply to requirement of criminal conduct—awareness of some
wrongdoing…we have long been reluctant 勉强的/不情愿的 to infer that a
negligence standard was intended in criminal statutes”
(2) “The fact that statute does not specify any required mental state does not mean that
none exist…guilty mind is necessary in the indictment and proof of every crime”
(a) Sup Ct did not define what “awareness” means in the statute
(b) b/c it doesn’t need to give an answer, only need to point out the question of
lower court’s ruling
(3) if use “whether “Reasonable person” regards the communication as a threat”:
regardless of that D think. → x, cause what D thinks does matter.

MPC Approach
1) Most states have applied MPC standard of mens rea—the most influential section of MPC
2) MPC 2.02(2) Types of Culpability Defined:

Conduct Attendant Circumstance Result

Purpose Conscious object Aware / believes / hopes Conscious object

有意识地 (Not conscious object b/c
= you want to do it (it’s situations are likely not
your goal) under your control)
Ex. 乱伦 case (Hope sis but believe not
sis. Still purpose)
Knowledge Aware Aware that the Cir exists
(OR 2.02(7): aware of a high
= knowingly probability of its existence,
unless he actually believes it
= you want it to happen
(it’s your goal)
Aware that it’s practically
certain
= know result will caused
by his conduct in the

29
 (aware that the does not exist ordinary course of thing,
conduct is of that = aware of >51% chance unless something highly
nature) unusual happens
Reckless Consciously disregards Consciously disregards Consciously disregards
of substantial and of substantial and unjustifiable of substantial and
unjustifiable risk risk unjustifiable risk
Consciously disregards (aware) a substantial and unjustifiable risk
Its disregard is a gross deviation from standard of conduct that a law-abiding
person would observe in the actor’s action
1. Actor must be aware of some risk, and subjectively disregards.
2. The risk is defined objectively. D’s assessment of the level of risk doesn’t matter
3. Jury is responsible to apply facts and decide whether the risk is objectively
substantial and unjustifiable as to a reasonable person. D don’t have to include
his conduct is substantial/unjustifiable-just have some risk
4. Actor must be aware of all facts supporting an objective finding that the risk is
substantial and unjustifiable
 “Substantial”: degree of likelihood (even 1% chance of social harm can be
substantial in certain circumstance)
 “justifiable”: reasons for taking the risk (ex. doctors perform surgery that
can result in death)
Negligent Should be aware Should be aware Should be aware
of substantial and of substantial and unjustifiable of substantial and
unjustifiable risk risk unjustifiable risk
Unaware but should be aware of a substantial and unjustifiable risk
Its disregard is gross deviation from standard of conduct that a reasonable person
would observe in the actor’s action
…that the conduct is …that the circumstance …that the conduct will
of such nature exists cause such result
a) If off the scale of MR, no liability unless there’s strict liability
i) Strict liability is rare and only exist for violation (fine-only offense)
b) Hypos:
i) If an offense is teaching while raining. Weather report says it’s 70% chance to have rain
today. But the teacher sincerely believes it will not rain. Though he worried a little bit
that there’s a high chance of raining, he still teaches anyway.
(1) Mens rea for AC (raining)  recklessness
(a) b/c the teacher was aware there’s a substantial risk of raining
(b) Not knowledge b/c the teach actually believes it will not rain §2.02(7)
ii) Same as above except the teacher hopes it will rain.
(1) Mens rea for AC (raining)  purpose
(a) b/c the teacher hope it will rain
(b) when purpose is satisfied, knowledge is also satisfied. §2.02(5)
iii) Sees some clouds and doesn’t think about the rain at all → should’ve been aware of the
chance though → negligence

30
 c) 2.02(3) - If statute is silent as to mens rea, default is recklessness
d) 2.02(4) - apply any stated mens rea to each material element unless a contrary
purpose plainly appears
e) 2.02(5) - higher culpability standard can be used to satisfy a lower standard
f) 2.02(6) Purpose satisfied if purpose is conditional:
i) When a particular purpose is an element of an offense, the element is established
although such purpose is conditional, unless the condition negatives the harm or evil
sought to be prevented by the law defining the offense
(1) Conditional purpose = purpose, unless the condition is lawful
(2) ex. A break into house to rape B, only if B’s alone unlawful condition purpose
(3) ex. A takes money from B, believing it’s his own and willing to return if he
mistakenly believed lawful condition and negate harm/evil Not purpose
(4) ex. A takes money from B, deciding to keep it unless A wins lottery  unlawful
condition purpose
g) 2.02(7) Knowledge satisfied by knowledge of high probabobility:
i) When knowledge of the existence of a particular fact is an element of an offense , such
knowledge is established if a person is aware of a high probability of its existence,
unless he actually believes that it does not exist
(1) MPC’s modified version of willful blindness doctrine
h) 2.02(8) Willfulness satisfied by knowledge:
i) A requirement that an offense be committed willfully is satisfied if a person acts
knowingly with respect to the material elements of the offense, unless a purpose to
impose further requirements appears
i) 1.13(12) - free-floating mens rea has its own requirement; usually purpose (“with
intent to”)
i) “"intentionally" or "with intent" means purposely”
ii) The MR associated with the free-floating element does not affect the MR required for
the other AR elements (ex: if statute is silent on MR except for the free-floating element,
then all AR elements are recklessness)
j) 1.13 (9) & (10) - “material” element = something that is connected to the central harm or
evil that the offense seeks to prevent
i) “invisible elements” - not expressly stated, but have to be proven. Strict liability - no
mens rea required (bc not material elements)
(1) Identity
(2) Jurisdiction
(3) “On or about” (when it happened)
k) 1.13(12) - intent = purpose
l) 2.05 - every element of every crime must carry some level of culpability – otherwise
3) Purpose v. motive
a) Purpose (intention): a consequence is intended when it is desired to follow as the result of
the actor’s conduct.
b) Ex: One intended to (1)steal money(intent) (2)in order to help his daughter(motive).
4) Purpose v. wish

31
 a) A gave B airplane ticket, hoping B will die in a crash.
i) Depends on whether:
(1) A knew the chance of crash were exceedingly remote, but liked to take long shots
(2) A believed would crash bc an astrologer predicted it would
(3) A believed would crash bc A knew terrorists had targeted it.
5) Willful Blindness Doctrine vs. MPC 2.02(7):
a) Willful blindness 视而不见:
i) Really a blend of the MPC levels need to examine what law is in the jurisdiction
ii) Mostly focus on whether the actor deliberately avoided guilty knowledge (whatever
steps taken to ward off knowledge)
b) MPC 2.02(7):
i) Focus on how certain the actor is about the fact subjective mental state
c) United States v. Jewell (9th Cir. 1976)[G]: willful blindness:
i) Fact: D entered the US driving an automobile in which 110 pounds of marijuana that
had been concealed in a secret compartment. D testified he did not know the marijuana
was present. But jury could infer from circumstantial evidence that D did know, and his
testimony is false. And evidence that D knew of presence of secret compartment and
had knowledge of facts that it contained marijuana, but deliberately avoided positive
knowledge of the presence of contraband to avoid responsibility if discovered.
(1) Jury can find either D deliberately avoided to know / indeed knew and is just a big
lair both lead to conviction
ii) A defendant can be convicted based off of deliberate ignorance because it is the same as
positive knowledge
(1) Willful blindness/Ostrich Instruction requirements:
(a) Defendant subjectively believes there is a high probability of circumstance’s
existence
(i) Not knowledgeable when person believes circumstance doesn’t exist
(b) Defendant must take deliberate action to avoid learning of that fact
iii) D was charged of:
(1) “Knowing possession of controlled substance (ex. marijuana) with intent to
distribute”
(a) Mens rea for AC (marijuana): knowledge. MPC 2.02(4)
iv) Jury instruction:
(1) “Prosecution could establish knowledge if D was not actually aware that there was
marijuana in the vehicle, his ignorance in that regard was solely and entirely a
result of his having made a conscious purpose to disregard the nature of that which
was in the vehicle with a conscious purpose to avoid learning the truth”(Ostrich
Instruction)
(a) = only require deliberate ignorance, not requiring knowledge of high probability
(i) b/c federal cases have not adopted MPC
v) App Ct affirmed trial court’s instruction:
(1) Substantive: deliberate ignorance and positive knowledge are equally culpable

32
 (2) Textual: in common understanding, one “knows” facts of which he is less than
absolutely certain
(3) Cited MPC to support its conclusion
(4) the government must prove, “beyond a reasonable doubt, that if the defendant was
not actually aware . . . his ignorance in that regard was solely and entirely a result
of . . . a conscious purpose to avoid learning the truth.” . . .
(5) Policy: requirement of positive knowledge would make deliberate ignorance a
defense. Inconsistent with the general purpose to control drug.
(6) “He suspected the fact; he realized its probability; but he refrained from obtaining
the final conformation because he wanted in the event to be able to deny knowledge.
This, and this alone, is willful blindness. It requires in effect a finding that the
defendant intended to cheat the administration of justice.”
vi) Kennedy’s 3 dissents: -should require a high probability of substance being present in
the car
(1) Majority is inconsistent with MPC, which require knowledge of high probability,
instead of deliberate ignorance—the two are not equal
(a) ex. a kid with a gift box may deliberately avoid knowing what the gift is by not
opening the box, but he clearly does not know what the gift is
(2) Majority did not alert jury that D cannot be convicted if he actually believes there
was no marijuana. MPC 2.02(7)
(3) Majority is wrong to instruct jury that D can be convicted even if he does not
actually know there was marijuana
(a) “True ignorance, no matter how unreasonable, cannot provide a basis for
criminal liability when the statute requires knowledge”
d) US v. Goffer (2013)-insider-trading case
i) Knowledge is in mail fraud, money laundering, environmental pollution, and a variety of
other offenses. So willful blindness instruction is important to them too.
ii) The jury was instructed that it could find the necessary knowledge on a conscious
avoidance theory, and the court upheld the resulting conviction.
e) Current federal standard (Global-Tech Appliances, Inc v. SEB)-varies but all agree in 2
i) D must subjectively believe there’s a high probability that a fact exists
(1) Draw on MPC’s words but leaves out the exception clause “unless actually believes it
does not exist”
ii) AND D must take deliberate actions to avoid learning of that fact
(1) Requires affirmative action
(a) But some minority courts may only need failure to investigate, or even cutting-
off of normal sensitivity by an effort of will
(2) Motive for deliberate action to avoid truth is not considered
iii) Vs. MPC:
(1) MPC §2.02(7) aims only to provide a way to infer actual knowledge → if D actually
believed that the crucial circumstance did not exist then not knowledge.
(a) Ex. If D realizes it is highly likely has drug + no practically feasible way to
investigate (means no deliberate action to avoid learning)

33
 (b) MPC: √
(c) Global: X
(2) Deliberate avoidance v. high probability
(a) Willful ignorance: whether D deliberately avoided guilty knowledge → what
steps D took to ward off knowledge prior to the mislead
(b) MPC: how certain D is about a fact
iv) criminal law doctrine particularly helpful in civil suits against lawyers, accountants, and
investment advisors because “[t]heir education, training, and experience all militate in
favor of the jury’s finding that D professionals well understood what was going on.
v) US v. Giovannetti (1990)[NG]
(1) FACTS: D convicted aiding and abetting a gambling operation by renting house to
gamblers. No direct evidence of knowledge, but knowing the lessee were
professional gamblers, and didn’t ask their intent.
(2) Court reserved the conviction: error to give “ostrich” instruction
(a) F failed to display curiosity but didn’t prevent the truth from being
communicated to him. → didn’t act to avoid learning the truth
vi) US v. Heredia (2007)[G]:
(1) weird smell in the car, mom was nervous, maybe drugs in the car? Driver couldn’t
pull over and investigate because on the freeway/before the checkpoint, just missed
the last freeway exit before the checkpoint (think its too dangerous to check)
(2) court- upheld the conviction: “A defendant who fails to investigate for these reasons
has not deliberately chosen to avoid learning the truth.”
(a) Concurring:
(i) A [willful blindness] instruction ought to require (1) a belief that drugs are
present, (2) avoidance of confirmation of the belief, and (3) willfulness in
that avoidance — that is, choosing not to confirm the belief in order to “be
able to deny knowledge if apprehended.”
(3) Used the Jewell test
(4) Belief of drugs & avoided conforming this belief

Elemental analysis

34
1) Guide for analysis:
a) Element: anything prosecutor need to prove beyond reasonable doubt. Only material
element need mens rea. Actus rea is the external aspect, mens rea is mental aspect.
b) Decide the material elements (actus rea) of the offense
i) All elements except invisible elements of jurisdiction, venue, identity, “on or about”
(when, where, how it happened)
(1) Connected to harm or evil that the offense seeks to prevent
(2) If not a material element don’t need an element of mens rea, but still must prove it is
an element
(3) Who, when, where are elements that are non-material
(4) Never an invisible element
(5) Could you say Not ____, so not guilty? If not, it’s probably not a material element
ii) Criteria : MPC §1.13(9), MPC § 1.13(10)
c) Decide mens rea required for each material element
i) Governed in the first instance by the terms of the offense itself, if terms are ambiguous,
by default rule: MPC §2.02(3) & (4)
d) Decide mens rea and actus rea present in the facts
i) Factual analysis is independent from statutory analysis, no matter how the statute
change, facts are always the same
e) Free floating mens rea: not clearly connected, treat the rest of statute like an independent
statute
f) Silent statutes-minimum is recklessness in MPC
g) Ambiguous mens rea terms-culpability applies to all material elements
h) Willfulness is satisfied by acting knowingly
2) MPC 2.02(1) Minimum Requirement of Culpability:

35
 a) Except as provided in §2.05, a person is not guilty of an offense unless he acted purposely,
knowingly, recklessly, or negligently, as the law may require, with respect to EACH material
element of the offense
i) = every material element must carry a culpability, otherwise it’s just a violation
(1) A violation does not constitute a crime
ii) Most elements come from the statute defining the offense
iii) § 1.13(9) “Element of an offense”: the prosecution must prove beyond reasonable
doubt of: i) such conduct ii) such attendant circumstance iii) such a result of conduct as
(a) included in description of the forbidden conduct in the definition of the defense
OR (b) establishes the required kind of culpability
OR (c) negatives an excuse or justification for such conduct
OR (d) negatives a defense under the SOL
OR (e) establishes jurisdiction or venue.
Note: “element…conduct as”–(a)---actus reus; (b)---- mens rea; (c)(d)---defense
iv) § 1.13(10) “material element of an offense”: an element connected to the (i) the
harm or evil, incident to conduct, sought to be prevented by the law defining the offense,
(ii) the existence of a justification or excuse for such conduct;
(1) Does not include SOL, jurisdiction, venue or other invisible elements  no need to
prove mens rea for them, but still need to prove it’s an element
(a) Invisible elements: not expressly stated but have to be proven.
(i) strict liability - no mens rea required, b/c non-material
(ii) Identity, Jurisdiction, “On or about” (when, where, how it happened)
3) MPC Rules of Constructions:
a) 2.02(3) Default is Recklessness if Silent:
i) When the culpability sufficient to establish a material element of an offense is NOT
prescribed by law, such element is established if a person acts PKR with respect thereto.
(1) = when statute is silent, default mens rea is recklessness
b) 2.02(4) Prescribed Culpability applied to All:
i) If the law defining the offense prescribes a culpability but did not specify which material
element it applies to, then the culpability is applied to all material elements of the
offense, unless a contrary purpose plainly appears:
(1) The law must first prescribe a culpability, cannot be silence
(2) “Unless contrary purpose plainly appears”
(a) = unless the law clearly states the prescribed culpability does not apply to a
material element
(b) Could be ambiguous whether there’s contrary purpose—can argue both ways
c) 2.02(5) Hierarchy of Culpability:
i) Higher culpability standard can be used to satisfy a lower standard
(1) If P K and R and N
(2) If K R and N
(3) If R N
4) ex:

36
 a) BURGLARY (N.Y. PENAL LAW §140.25) (2021): A person is guilty of burglary in the second
degree when he knowingly enters or remains unlawfully in a building with intent to commit
a crime therein, and when: 1. [omitted]; or 2. The building is a dwelling.
b) BURGLARY (CAL. PENAL CODE §§459-460) (2021): Every person who enters any house,
room, apartment . . . or other building . . . with intent to commit grand or petit larceny or any
felony is guilty of burglary. . . . Every burglary of an inhabited dwelling house . . . , or the
inhabited portion of any other building, is burglary of the first degree. . . . All other kinds of
burglary are burglary of the second degree.
c) DESTRUCTION OF PROPERTY (D.C. CODE ANN. §22-303) (2021): Whoever maliciously
injures or breaks or destroys, or attempts to injure or break or destroy, by fire or otherwise,
any public or private property, whether real or personal, not his or her own, of the value of
$1000 or more, shall be fined not more than [$25,000] or shall be imprisoned for not more
than 10 years, or both. . . .
5) Step for analysis:
a) Begin with actus reus elements that need to be proven
i) Breaking down the definition of crime to find each material element
ii) Don’t leave out invisible elements (who/where/when) that also must be proven
beyond a reasonable doubt
iii) Classify actus reus elements by type: non-material, Conduct, AC, Results
(1) Conduct: action kinda of words
b) Mens rea for each material element of the crime
i) 4 levels—PKRN
ii) If statute is silent  import default rule of recklessness
(1) If not in MPC jurisdiction:
(a) Not unlikely to come out in MPC. But you have to laid out
iii) If prescribed but not specified applied to all elements unless a contrary purpose
appears
(1) If ambiguous on whether there’s contrary purpose can argue both ways
c) Analyze facts to determine if actus reus is present
d) Analyze facts to determine if mens reus present
6) Example 1:
a) D rips off houses for a living and was cruising at 9pm. He found house with no lights on, but
knew it was risky. Believing the house unoccupied, he broke in from back window to steal
small and valuable items, easy to transport. 3dp called the police and police caught him
before he fled.
b) Offense 1: “break and enter the occupied dwelling of another” (A+B+C)
i) no result in statutes of this one
ii) Guilty? √
Law Fact
Actus rea Type Required Mens AR present? MR present?
elements rea
1 Break Conduct Reckless 2.02(3) Yes Purpose
2 Enter Conduct Reckless 2.02(3) Yes Purpose

37
 (2.02(4) doesn’t
apply b/c statute
fail to prescribe
any culpability)
3 Occupied AC Reckless 2.02(3) Yes (even if Reckless (not
people not in knowledge, b/c
the house right D actually
now, it’s still believes it’s not
occupied) occupied, but
he aware of the
risk)
4 Dwelling AC Reckless 2.02(3) Yes Purpose
5 Of another AC Reckless 2.02(3) Yes Purpose
6 Identity Nonmaterial N/A Yes -
7 Jurisdictio Nonmaterial N/A Yes -
n
8 Date Nonmaterial N/A Yes -

c) Offense 2: “willfully breck and enter the occupied dwelling of another” (Willfully A+B+C)
i) willful = knowingly. MPC 2.02(8)
ii) analysis of the fact is always the same, no matter how the law/offense is changed
iii) Here, the mens reus requirement for AC “occupied” is not met, so D is not guilty
Law Fact
Actus rea Type Required mens AR present? MR present?
elements rea
1 Break Conduct Knowledge Yes Purpose
2 Enter Conduct Knowledge Yes Purpose
3 Occupied AC Knowledge Yes Reckless (not
2.02(4) satisfy K, no
liability)
4 Dwelling AC Knowledge Yes Purpose
2.02(4)
5 Of another AC Knowledge Yes Purpose
2.02(4)
6 Identity Nonmaterial N/A Yes -
7 Jurisdiction Nonmaterial N/A Yes -
8 Date Nonmaterial N/A Yes -
d) Offense 3: “break and enter the occupied dwelling of another with the intent to commit
larceny or any felony herein” (A+B+C with intent to X)
i) “Intentionally” / “with intent” = purpose. MPC 1.13(12)
ii) Free floating mens rea:
(1) has its own requirement; usually purpose (“with the intent to commit X…”)
(2) the whole part is mens rea, instead of actus rea

38
 (3) MR of free-floating element does not affect MR required for other material elements
(a) if no mens rea specified for other material elements  reckless
Law Fact
Actus rea Type Required mens AR present? MR present?
elements rea
1 Break Conduct Reckless Yes Purpose
2 Enter Conduct Reckless Yes Purpose
3 Occupied AC Reckless Yes Reckless
4 Dwelling AC Reckless Yes Purpose
5 Of another AC Reckless Yes Purpose
6 Identity Nonmaterial N/A Yes -
7 Jurisdiction Nonmaterial N/A Yes -
8 Date Nonmaterial N/A Yes -
w/ purpose to - Purpose
commit larceny or
felony inside
1) A+B+C
2) Willfully A + B+ C
3) A+B+C with intent to X
4) A+B+ knowingly C
5) Example 2: Knowingly A + B + C with intent to X:
a) Mens rea: A, B, and C  knowledge; X  purpose
6) Example 3: A + B + knowingly C
a) Ambiguous whether there’s contrary purpose with applying knowledge to A, B
i) can argue both ways, then App Ct have resolve it as legal issue
ii) A+B+C+ knowingly D
7) Example 4: MPC §213.4. A person who has sexual contact with another not his spouse, or causes
such other to have sexual conduct with him, is guilty of sexual assault, is misdemeanor, if (1) he
knows… (2) he knows… (8) the other person is in custody of law or detained in a hospital or
other institution and the actor supervisory or disciplinary authority over him
a) Ambiguous whether there’s contrary purpose that knowledge apply to (8)
i) Can argue there’s “contrary purpose” b/c it deliberately leaves out “know” that’s in
previous provisions
8) Example 5: D dates with a girl who he later found may be his half-sister. D hopes she’s his half-
sister and continue to have sex with her. Though D also believes it’s not his half-sister, in reality,
the girl is his half-sister.
a) Offense: §230.2 A person is guilty of incest 乱伦 if he knowingly …has sexual intercourse
with…a sister of the whole or half-blood.
Law Fact
Actus rea Type Required AR MR present?
elements mens rea present?
1 Sexual Conduct Knowledge Yes Purpose
intercourse

39
 (etc.)
2 With sister AC Knowledge Yes Purpose (D hopes
(etc.) it’s his half-sister,
though he actually
believes she’s not
his half-sister)
6 Identity Nonmaterial N/A Yes -
7 Jurisdiction Nonmaterial N/A Yes -
8 Date Nonmaterial N/A Yes -

Mistake
MPC treats a mistake as a defense if it negates the required mens rea for a material element
Mistake of Fact
1) = ignorance/unware or mistake as to a fact pertaining to the element of offense
a) Do elements analysis to determine if the required mens rea for a material element is not
there
b) But the MPC abolishes strict liability as element of any crime
2) Mens rea and rules governing mistakes are logically connected (can’t be addressed separately)
a) Rationale of MPC 2.04
3) Common law approach:

a) Only have a good defense if it is a specific intent crime or conduct is not wrong
b) No defense whether it is reasonable or unreasonable if the conduct is wrong
c) Specific Intent Crime vs. General Intent Crime:
i) Boundaries not completely clear

40
 ii) Specific intent: - usually has a free-floating mens rea (additional consequence with act,
ex. “with intent to” / sometimes crimes that requires "purpose or knowledge with
regard to circumstance or result”)→ Good defense
(1) Crime requiring specific intent to commit some further acts / achieve further
consequences
(2) Crimes requiring knowledge for circumstance elements
iii) General intent: - no additional mens rea → God defense if it is a reasonable mistake and
the conduct isn’t wrong in itself
(1) Any crime that does not satisfy specific intent
d) Moral wrong vs. Legal wrong:
i) What does “wrong in itself” means? –no clear answer (split of courts)
(1) some courts: morally wrong (minority)
(2) some courts: legally wrong (majority)
ii) Moral wrong doctrine:
(1) Had the fact been as D supposed, he’s morally wrong. (Prince’s majority)
(a) subjective & unstable
iii) Legal wrong doctrine:
(1) Had the fact been as D supposed, he’s liable for another crime (criminal or civil),
albeit a lesser one. (Prince’s dissent)
e) Reasonable vs. Unreasonable mistake:
i) Unreasonable mistake is not defense
(1) Problem: when we say “unreasonable”, it usually only means “negligent”, so an
offense requiring “reckless” should not just be satisfied by negligence.
(a) MPC don’t have this question.
2) Regina v. Prince (UK. 1875)[G](Common law approach): moral wrong
a) Fact: D took an unmarried girl under 16 out of possession and against the will of her father.
Jury found the girl was 14 but she had told D she was 18. D honestly believed that statement
and his belief was reasonable.
b) Charge: “whosoever shall unlawfully take or cause to be taken any unmarried girl being
under the age of 16, out of the possession and against the will of her father...”
i) a property-type offense: treat the girl as a property owned by her father
ii) no mens rea specified
c) Holding: reasonable mistake of fact for general intent crime is NOT defense if the forbidden
act is wrong itself
i) “I do not say illegal, but morally wrong,” “the legislature has enacted that if anyone
does this wrong act, he does it at the risk of her turning out to be under 16.”
(1) Negligent? For mens rea
ii) Moral wrong: community morals determine the crime
(1) Morally wrong: for a general intent crime, if it would be wrong in itself the
defendant has no defense even to a reasonable mistake of fact
(2) Even though man didn’t have intent to commit crime, it is a crime because it is
“grounded in a moral wrong” that is not necessarily illegal, the act of taking a young
girl form her father.

41
 (a) (D’s age belief was completely reasonable but the acts were wrong in itself so it
doesn’t matter)
iii) If D believed he had the father’s consent, though wrongly, he would have no mens rea
(1) Court requires “knowledge” for other actus rea elements (Knowledge for possession
by father)
(2) But apply strict liability for circumstance element of “age” (→ no MR for “age”)
(3) = substantive decision regarding statutory silence as to mens rea requirement
(a) Cf. Cunningham & Faulkner: no mistake of fact b/c they did not have any
misunderstanding of fact, they know clearly what they’re doing, they just didn’t
know the consequence of their actions
(b) this was a new issue CL had to develop a response
d) Lesser-crime principle: a defendant who knowingly commits a crime runs the risk of it
resulting in the greater crime
i) Run the risk of it being the greater crime (higher charge)
ii) Mistake of fact cannot function as a defense to the greater defense
e) Dissent (Brett): only legal wrong is the wrongdoing that criminal law should punish
i) there can be no conviction without mens rea (lesser crime approach); just because
statute is “silent” doesn’t mean there is no mens rea required
ii) A mistake of facts, on reasonable grounds, to the extend that if the facts were as
believed the acts of the prisoner would make him guilty of no criminal offence at all, is
an excuse and that such excuse is implied in every criminal charge and every criminal
enactment in England.
(1) Even though ethical attitudes owe much to culture and environment, there is
enough room for individual divergence to make Professor Brett’s approach a
slippery one.
3) People v. Olsen (CA. 1984)( Semi-Modern Approach): legislative intent + strict liability
a) Fact: Shawn was 13, slept in camper trailer outside, locked the door, awakened by Garcia
w/ knife who asked her to have sex with D. Her father entered the trailer. Garcia stabbed
father. Shawn knew Garcia very well and told both Garcia and D she’s > 16. And she looked
as if she’s over 16. Shawn has had sex with both Garcia and D before.
i) D’s version: Shawn invited him to have sex in trailer
b) A defense of fact can help lighten the sentencing after one is convicted, but it will be a
defense to the crime
i) A mistake of fact in relation to age is not a defense of lewd acts with child under 14
because it doesn’t serve the legislative purpose (strict liability as to age)
ii) Departs from MPC from use of strict liability with legislative intent for mistake of fact
once people have been convicted to lighten sentencing-but not offer it as a defense
(1) 减轻量刑，但不作为 defense
c) Charge: “any person who shall willfully and lewdly commit any lewd or lascivious act…upon
or with the body of a child under 14, with the intent of arousing the sexual desires of such
person or child…”(specific intent crime)
d) Holding: even reasonable, good faith mistake of fact is NOT defense
i) Court applies strict liability for element of “age”depart from MPC
(1) No Mens rea. Just strict liability.

42
 ii) Use legislative intent as support (solve mens rea problem w/ common legal argument)
(1) If there is Honest/reasonable belief regarding victim’s age→eligible for probation
(a) Enactment of probation 缓刑 law show legislature offer such mistake to lighten
sentencing once people had been convicted, not to offer it as defense to crime
(i) 注意区分减轻量刑 lighten sentencing 和不是罪 defense to crime 的区别。
(2) Strong public policy to protect children of tender years and §288 was enacted for
that very purpose
e) Prince will say it’s morally wrong itself to have sex with a 16-year-old
i) Old morals: at the time it’s morally wrong to have sex with youth in camper trailer
(1) Different from today’s moral
f) Concurring & Dissent (J Grodin):
i) Agree on probation is persuasive evidence that Legislature don’t intent “honestly and
reasonable belief” is defense.
ii) strict liability should only apply to public welfare offense or not apply at all
(1) mistake of fact in relation to age is not a valid defense-but this cannot be inferred
from the higher penalties
(2) Going to jail is cruel/unusual & need proof of thought
g) Mixed position of precedents:
i) People v. Hernandez (1964): good faith, reasonable belief that a victim was 18 or more
was a defense to statutory rape.
ii) People v. Lopez (1969): reasonable mistake of age is NOT defense to charge of selling
marijuana to a minor.
(1) = legal wrong doctrine:? “lesser-crime principle”
(a) “A mistake of fact relating only to the gravity 严重性 of an offense will not
shield a deliberate offender from the full consequences of the wrong actually
committed”
(b) “The act of furnishing marijuana is criminal regardless of age. Furnishing
marijuana to minor simply yields a greater punishment than furnishing to adult”
4) MPC Mistake of Fact: (Modern MPC approach)
1) Set aside traditional common law framework, focus on subjective culpability
2) MPC 2.04(1) Ignorance on mistake as to a matter of fact OR law is defense if:
a) (a) the ignorance or mistake negatives the mens rea (PKRN) required to establish a
material element of the offense
(1) = an elemental analysis: if the mistake makes the mens rea required can’t be met
mistake defense
(a) analytic clarity: mens rea and mistake are connected
(b) focus on mens rea/culpability & disfavor strict liability
(i) unreasonable mistake can constitute defense if, with the mistake, actor
does not have the required mens rea of PKR (unreasonable = negligence)
(c) set aside traditional common law framework
(d) 其实也不太需要这条，因为 MPC require mens rea.
(e) If you have a higher men rea, and you made a unreasonable mistake, then the
mens rea requirement never met.

43
 b) OR (b) the law provides that the state of mind established by such ignorance or mistake
constitute a defense.
(1) An exception to mistake of same law
b) MPC 2.04(2) Defense is not available if D would be guilty of another offense had the
situation been as he supposed. But the ignorance or mistake of D shall reduce the grade and
degree of the offence of which he may be convicted to those of the offense of which he
would be guilty had the situation been as he supposed.
i) - Ex: A thinks B’s clothes are cheap and ruins them. B’s clothes turn out to very
expensive. A could use the mistake of fact defense to reduce the grade of the offence
from destruction of property worth $100 to destruction of property worth $25. A is still
guilty, but of a lesser offense with mistake of fact.
ii) A limited defense: actor is still guilty, just of a lessor offense
(1) the effective measure of D’s liability should be his culpability, not the actual
consequences of his conduct.
(2) 但是 lessor offense 的 element 得能被 charged 全包括，如果有新的，就不行。
iii) Not exactly follow CL’s legal-wrong principal
(1) MPC reduce the gravity of offense (only guilty of lessor crime, instead of greater
crime as in common law)
5) Lesser crime principle:
c) If you think that you’re doing something (possessing heroin) but actually doing something
more serious (possessing crack) still guilty of more serious crime because rooted in “lesser
crime.” Highly contentious and decided both ways
i) In MPC can have a mistake that means you’re not guilty of the greater offense
ii) What you’re guilty of is the lesser crime including lesser punishment; liability provision
iii) Mistake of fact can function as defense
d) Proportionality of punishment.
6) Hypos:
a) Student left book in the classroom and S thought it belongs to himself and ripped out pages
from it. S is charged with “intentionally damaging the property of another.” (specific intent
crime? Bc require purpose regarding Circumstance?)
i) Mistake of fact: who own the book?
ii) Mens rea required for “of another”: intention = purpose
(1) = aware or believes or hopes book belongs to another
(2) Elemental defense, NO MR, b/c purpose is not established for “of another” since S
thought the book belongs to him, not to others
b) Same as above, except the book has someone else’s name on it
i) Mistake of fact: who own the book?
ii) Mistake is unreasonable, but still have elemental defense
(1) b/c unreasonable only means negligence, which still can’t satisfy “purpose”
(2) we do not care whether the mistake is reasonable or not, only whether it can negate
the required mens rea
c) Same as above except the offense is now “damaging property of another,” without stating a
mens rea in the statute

44
 i) Mistake of fact: who own the book
ii) Mens rea required for “of another”: recklessness MPC 2.02(3)
(1) = aware of some risk that book is of another
(2) Probably elemental defense, b/c reckless is not established as actor did not know
any risk that the book can belong to another (reasonable mistake?+conduct id not
wrong?)
d) S pours ink on Carl’s shirt. S thinks the shirt is worth $50, but it's actually worth $200. S is
charged with “intentionally damaging property of another in excess of $100”
i) Mistake of fact: how much Carl’s shirt worth?
ii) Mens rea required for “value of property:” intention = purpose
(1) = aware or believes or hopes property is > $100
(2) Elemental defense, b/c purpose is not established under S’s mistaken belief the t-
shirt does not worth > $100, but only $50
(a) No defense if D’s actions would have constituted a lessor crime had the situation
been as he supposed, ex. “damaging property of another in excess of $30” MPC §
2.04(2)
e) S broke his glasses and went to the wrong house, thinking it’s his home, noticing the key
was not in right place. S is charged with “knowingly break and enter a dwelling of another”
i) Mistake of fact: whose house?
ii) Mens rea required for “of another:” knowledge
(1) = aware of high probability that it’s not his house
(2) Elemental defense, b/c even if he notice the key is put in wrong place, S still thinks
it’s his house

Mistake of Law—MPC Approach

1) = ignorance or mistake as to the meaning of the law
2) 思考路径： mistake of fact/law→(mistake of same/different law)→analyze approach?
(element analyzes?)→elemental defense?
3) 就像 mistake of fact 一样，

45
4) Mistake of different law:
a) = mistake to any law other than the one defining the offence that D is charged (ex. D steal
property, and mistake about the property law)
b) elemental defense under MPC IF the mistake negates the mens rea required by statute
c) is often treated very similarly to mistake of fact because same result of misunderstanding of
fact
d) Regina v. Smith (1974): mistake of different law
i) Fact: D, in preparing to leave his rented apartment, damaged some wall panels and
floorboards in order to retrieve stereo wiring (that he earlier installed with landlord’s
permission) behind wall panels and floorboards of his own construction, thinking the
new flooring and wires were now his property.
ii) D was charged of Criminal Damage Act:
(1) “A person who without lawful excuse destroys or damages any property belonging
to another intending to destroy/damage any such property or being reckless as to
whether any such property would be destroyed/damage, shall be guilty…
iii) D’s mistake: he thought a fixture still belongs to him, but it actually belongs to owner of
wall
(1) Mistake of different law (what if made a mistake with mistake of fact? Ex. Whose
property?)—有一个 note 说 treated the same as the mistake of fact
(a) b/c D did not understand that fixture does not belong to him—property law
issue
(b) Elemental defense if the mistake negates the mens rea required for “of another”
(i) Mens rea required for “of another” = reckless
1. Why not “intent=purpose?”
a. Because “of another” is before “intending”? No
b. 有“being reckless”&“intending”→ always thinking about the lower
one
(ii) D’s mistake negates “reckless”, b/c he’s at most negligent

46
 1. D was not aware of any substantial risk that his stereo wiring actually
belongs to another after fixed to the wall (or at most should have aware
of such risk but did not)
5) Mistake of same law:
a) = mistake to the body of law defining the offence that D is charged/ Mistake of the meaning
of the law you are charged with; includes law you didn’t think existed
i) Body of law: the statute, or the judicial and statutory interpretations of the statute
ii) Does not lead to a mistake in facts and is not a defense
(1) Mistake of the meaning of the very offense with which you are charged-required
mens rea is unchanged/not negated
iii) Ex. A leaves her book behind. B takes the book and puts it in her locker. B believes
“stealing” the book would require carrying it and taking it out of the building.
(1) B is charged with “taking another’s property.” This is a mistake in same law because
B is mistaking how the very law she’s been charges with works.
b) No elemental defense, UNLESS an exception applies
i) 3+1 Exceptions:
(1) Law provides such defense
(a) MPC 2.04(1)(b): the law provides that the state of mind established by such
ignorance or mistake constitute a defense
(i) ex. the offense requires “knowledge of law” as an element of offence
(b) MPC 2.02(9): Knowledge/reckless/negligence of law is generally NOT an
element of an offence, unless the definition of offence so provides
(i) if statute requires purpose, mistake or ignorance of law may be defense
(ii) generally, element is not required P358
(2) Law is not known AND not reasonably made available
(a) MPC 2.04(3)(a): the statute or other enactment defining the offense is NOT
known to the actor and has NOT been published or reasonably made available
prior to the conduct alleged
(b) If published  reasonably made available
(i) Even when you are new to the country, and the law might not be easy for a
reasonable person to find
(ii) But sometimes court may rule “published” is not “reasonably made
available” based on Due Process Violation (rare)
(iii)Publish is enough UNLESS: (1) Law is in different language (2) It is too
complex (tax code) (3) Due process concerns don’t come into play
(3) Reasonable reliance of official statement of law---the statement need to be
invalid/erroneous later
(a) MPC 2.04(3)(b): acts in reasonable reliance upon an official statement of the
law, afterward determined to be invalid or erroneous, contained in:
(i) a statute or other enactment; or
(ii) a judicial decision, opinion or judgment; or
(iii)an administrative order or grant of permission; or

47
 (iv)an official interpretation of the public officer or body charged by law with
responsibility for the interpretation, administration or enforcement of the
law defining the offense
1. Must be public official or attorney, a private attorney is not enough
a. Attorney general√?
b. Public attorneys do because it would be a conflict of interest & due
process violation. Public attorney’s statement will constitute a
defense, private will not
2. Must be written interpretation, words and phone call is not enough
a. What is official interpretation 老师上课回答这个问题的时候没说
3. Cannot claim this defense simply by misconstruing meaning of a statute;
have to establish statute itself/law was erroneous
(v) MPC 2.04(4) the D must prove a defense arising under Subsection (3) of this
Section by a preponderance 优势 of evidence.
(b) Resealable reliance on failure of a government official to alert him?
(i) State v. Leavitt----Yes
1. L: convicted –misdemeanor domestic violence offense (can no longer
possess a firearm.) Judge notified he cant possess a firearm during the
1y probation (not false, but misleading). Then L was convicted---
unlawful possession after probation.
2. Court:
a. “knowledge” is not an element of firearm possession offense
b. “Combined actions and inactions” of the judge misled L reasonable to
understand the restriction is only for probation.
c. Violate Due Process if require L to speculate it expand when Judge
didn’t inform him.
(ii) State v. Wilson ----No (Similar case)
1. Court: “isolated deviation from the strong current of precedents - a
derelict on the waters of the law.”
2. Dissent: J Richard
a. This law is “not the kind of law that a lay person 外行 would intuit
凭直觉 existed”, & DOJ didn’t publicize the law long after W violated
it.
b. false economy. The purpose of criminal laws is to bring about
compliance with desired norms of behavior. This purpose is ill
served by keeping the law as a secret.
(4) Lambert’s Due Process Defense:
(a) Really narrow—no defense if:
(i) Statute is not about omissions, but positive actions
1. Because the center of Lambert is: doesn’t matter if law available, but the
duo process require adequate notice.
(ii) D has actual knowledge of the statutes or knowledge of alerting facts
2) Cheek v. United States (US 1991): law provide defense

48
 a) Fact: D, a pilot for AA, was convicted of “willingly failing to file federal income tax returns
for years”. D’s defense was based on info he received from a group opposing the institution
of taxation.
b) When a law provides understanding of the law as a requirement and the defendant made a
mistake as to the law it will provide a defense
c) D’s defenses:
i) He sincerely believes he owed no tax under the tax law, including tax on wages
ii) If he did [owe tax], the tax laws were unconstitutional
d) Charge: “any person is guilty of felony if willfully attempts in any manner to evade or defeat
any tax imposed by this title or the payment hereof”
i) Mens rea required: knowledge
ii) Willfully=knowledge, but knowledge is generally not required for an offense.
e) Holdings: D made two mistakes of law
i) D mistakenly thinks that wage is not income under tax law
(1) Mistake of same law
(a) D falsely understand the meaning of “income” in the broad tax law he’s charged
(2) NO elemental defense, UNLESS exception applies
(a) D has defense b/c “tax law is inherently complex, so legislature intend to include
‘intentional violation of a known legal duty’ in ‘willfulness’.”(Tax code required
understanding the law as a requirement because of how complicated it is/higher
standard than usual)
(i) Essentially read “knowledge of law” into an element of the offence
1. even an unreasonable mistake of law can be a defense, as long as the
mistake negates the mens rea (willfully/K) required by statute
2. Here, b/c D did not know this is a legal duty, his mistake negates the
mens rea required for element “knowledge of law” elemental defense
ii) D mistakenly think tax law is unconstitutional
(1) Mistake of different law, b/c
(a) Constitution deals with validity of tax law, but not the tax law itself
(b) NO elemental defense, b/c the fact that D argue tax law is unconstitutional
reveal full knowledge of the law
f) Note the inconsistency: court interpret “willfulness” to mean that D must know some legal
conclusion (that wages are income) but not others (that tax law is constitutionally valid)
i) CL court sometimes require “willfully/K” in federal statute to mean:
(1) awareness of specific statute at issue; or
(2) more general awareness that the acts committed are unlawful; or
(3) mere awareness of the facts (= what acts are committed).
ii) Court’s choice b/w the 3 often depend on policy concern / nature of offense
(1) ex. concern of criminalizing too many innocent conducts
(2) ex. drug and environmental law warrant stricter definition of knowledge
3) Lambert v. California (US. 1957)[NG]: Due Process Defense – Law is not known & not
reasonably made available
a) Fact: D was convicted with a statute that requires any convicted person who remains in CA
for a certain period to register with the state; D did not know & did not register

49
 b) When someone is held liable for omission to act on something that raised no suspicions &
that they weren’t aware of at all with a very large penalty, this violates due process and they
cannot be charged
i) Defendant had no opportunity to know the law, violating due process & she was never
given a chance to comply→No circumstances that would prompt inquiry by defendant
c) Charge: “unlawful for any convicted person to remain in LA > 5 days w/o registering.”
i) No mens rea specified by the statute
(1) SCOTUS declined to interpret statutory construction (b/c no power to interpret
state criminal law), so it chooses to treat it as a Due Process case
d) Holding:
i) Not exception of not available, because published is enough for that. But no real reason
D should’ve known
ii) CA’s statute violates Due Process by applying strict liability to people’s omissions
(1) Due Process require notice (so citizen can defend charge), when a penalty might be
suffered by “mere failure to act”
(2) CA ordinance punishes mere presence in the city, without any activity whatever
(a) No alert to D and no circumstances that should’ve tipped her off
(b) Whole passivity—duty just arise from being a temporary resident of LA
(c) Only purpose of CA statute is for convenience of law enforcement
iii) Due Process defense is valid even if the statute is already published!!!
iv) Court thus ruled actual knowledge (or that of high probability) is required for duty to
register and subsequent failure to comply
e) Dissenting: J Frankfurter
i) LA ordinance is a constitutional exercise of the city’s police power, “passive conduct” is
not convincing → no different than other valid strict liability offenses
ii) both feasance & non feasance can violate the law
(1) this can be useful when determine liability but not when determine
constitutional/unconstitutional
iii) this decision can cause isolated deviation from the strong current of precedents — a
derelict on the waters of the law.
f) = an outlier case: courts never apply Lambert, unless a tight match of facts (EXACT fact)
i) b/c court concerned it would be overly broadly applied
ii) If statute is published, most courts ruled the law is made available No mistake of law
defense. MPC
iii) State v. Bryant[G]
(1) Fact: B was convicted of sex offense in South Caroline, Judge informed him need
registration in South Caroline (didn’t inform also need to registration in other state
when move.) B moved to NC, didn’t register, been convicted: failed to register.
(2) Court:
(a) Intermediate Appellate Court: citing Lambert, conviction violating due process
(b) NC SC reversed
(i) Lambert was distinguishable → LA registration statute is a general law
enforcement device rather than a public safety measure.

50
 (ii) All states now have this kind of register regime, “the case was overflowing
with circumstances” so B should ask if he need register.
4) People v. Marrero (NY, 1987)[G]: judicial reliance – statute must later be found erroneous
a) Fact: D was a federal corrections officer of federal prison, arrested in a club for unlicensed
possession of a loaded pistol. D protested he’s not guilty b/c federal correction officer is a
peace officer within exception of the statute.
b) Misreading/misunderstanding for a mistake of same law will not allow a defense-even if
reasonable-if the mistake doesn’t fall into one of the enumerated exceptions
c) Charge: “a person is guilty…when he possesses any loaded firearm, unless he’s a peace
officer” (peace officer = “correction officers of any sate correction facility or of any penal
correctional institution.” §1.20 of Criminal Procedure Law (CPL)----not the state but could
be “any”)
d) D’s defense:
i) His mistaken belief of law is founded upon the official statute itself
ii) His mistaken reading of law is reasonable in view of ambiguous wording of the statute
e) Holding: D’s (reasonable) mistake of law is not a defense
i) Mistake of same law  no elemental defense
(1) b/c it’s mistake of meaning of “peace officer” in the body of law D is charged
(2) No exception applies, b/c not reasonable reliance on official statement of law
(a) NY legislature intends to adopt MPC mistake approach completely
(i) ?听一下后半段
(3) Personal misreading of law is no defense, the law must in fact authorize D’s conduct
(a) Essentially presume everyone should correctly understand law
(i) Otherwise Everyone can have different personal readings of law—too
uncertain
(ii) it’s practical for court to presume all people correctly understand law,
otherwise there can be a flood of litigation (even all good faith)
(iii)Utilitarian: opposite result would create incentive to misinterpret law
1. J. Holmes: “to admit an excuse of mistake of law would encourage
ignorance lawmaker has determined to make people know and obey,
and justice to the individual is rightly outweighed by the large interests
on the other side of the scales”
(4) The statute must later be determined to be invalid or erroneous ---not just a
misunderstanding of what it says
(a) it’s only fair to have defense when one who mistakenly acted in reliance on
authorizing statute, but later the statute was invalidated
f) Dissent:
i) Retribution 报应: D’s not blameworthy or doing wrongs, society has no reason to punish
ii) Unlike in ancient time, today many offenses are malum prohibitum 不法行为 instead of
malum in se 本身错误的, so we shouldn’t stick to the CL idea that every man is
presumed to know the law
iii) Legislative intent: NY legislature change the language of MPC and leave out “afterward
determined erroneous” to intentionally exclude this part

51
 g) Strict liability?
i) Offense like the one in Marrero are often strict liability offense, so a mistake of fact (ex.
whether the gun was loaded) is entitled to no elemental defense
(1) b/c when no mens rea is required, how could you negate mens rea!
5) Hypos:
a) S is buying a house and mistakenly thought title has passed to him during escrow. S broke a
window to get in the house, believing it’s already his house
i) Mistake of different law (leading to mistake of fact) can have elemental defense
(1) b/c S made a mistake about real estate law, not about the offense he’s charged
ii) Elemental defense, b/c knowledge is not established when S believe it’s his house
b) S knew it was not his house and slid open the back window carefully to steal valuable items
inside. S believes he did not “break and enter” b/c he mistakenly thinks carefully open an
unlocked window to reach inside doesn’t count as “break”
i) Mistake of same law  no elemental defense, unless exception apply
(1) b/c S makes mistake the meaning of term “break” in offense he’s charged
ii) No defense b/c no exception applies
(1) Not reasonable reliance of law, only a wrong personal reading of “break”
c) S leaves a book on the table and I think it’s now abandoned and belongs to nobody, so I take
it. But the book is not abandoned in property law. I am charged with larceny (intent to …..)
i) Mistake of different law (leading to mistake of fact) can have elemental defense
(1) b/c S makes a mistake of property law’s idea of “abandonment
ii) Elemental defense, b/c knowledge is not met when I believe the book belongs to nobody
(1) “intent” = purposely
d) S places a book on the table and leaves. I know the book belongs to him but I think the
conduct of “carrying away” only apply if I take the book from building. I put it in my locker.
i) Mistake of same law no elemental defense, unless exception applies
ii) No defense, b/c no exception applies here
e) S’s friend mention to give this unicycle to S who happily accepted the offer (contract law).
But later friend refuse to give it out. S thinks he owns the unicycle now and took it for rides.
S is charged of “knowingly taking property of another”
i) Mistake of different law (leading to mistake of fact) can have elemental defense
(1) b/c it’s a mistake on contract law: S made mistake about the ownership of the
unicycle / whether contract is valid
ii) Elemental defense, b/c S did not know the property belongs to another
f) S has no driver license, sitting in friend’s car, turn it on, police officer sees and charges S
with “willfully operating a motor vehicle without a license”. S thought “operating” is only
met when the car is moving
i) Mistake of same law no elemental defense, unless exception applies
(1) b/c it’s a mistake about the term “operating” in the law defining the offence
ii) No defense b/c no exception applies here
(1) law did not require “knowledge of law” as element of offence
(2) ? How about “willfully”? ex. Cheek “willfully” against the law. 这里是 willfully do sth.,
not willfully violate the traffic law.

52
 g) S just moved to US from Mexico where it’s not crime to throw snowball to school. But VA
makes it a crime and S was not aware of it. S throw snowball at school bus and charged.
i) Mistake of same law no elemental defense, unless exception applies
(1) b/c ignorance of the law = mistake of same law
ii) No defense b/c no exception applies
(1) unawareness of law is not defense nor exception
(2) law is published→reasonable available
h) Same as above except S went to private defense attorney who told S it’s not crime to throw
snowball at school bus.
i) reasonable reliance on law? No
(1) Private attorneys’ advice is not treated as official statement of law
(a) Policy: concerns with private attorneys exploiting that privilege
(2) But public official attorneys’ advice is official law
(a) It’s Due Process violation to convict a person who’s told by district attorney,
attorney general, police officers that it’s not an offence.
i) If the statute is published, but after using all reasonable ways to search for it (and it’s a very
practical question), you still can’t find the statute
i) Under MPC: publication = reasonable made available
j) S is caught at custom b/w bags of cocaine in his backpack. S mistakenly believes his
backpack did not contain cocaine but a bundle of currency ($5000) b/c his friend told him
so. S also believes bringing $5000 is disallowed in US, but actually only amount > $10,000
need to be registered. S is charged with “knowingly transporting cocaine into US”
i) First mistake: S thinks he brings in money, but it’s actually cocaine
(1) = mistake of fact:
(2) elemental defense, b/c no knowledge established for element of “cocaine”
(a) But some states may apply a “broader willful blindness” test to convict S
ii) Second mistake: S thinks he breaks the law by bringing $5000, but actually he does not
(1) = mistake of same law:
(a) S intend to commit a crime that does not exist no liability
(i) You can’t charge someone with something they haven’t done
(ii) Simple desire to break the law does not make S guilty of anything
(b) Symmetry: mistake of same law is no defense, but also no basis for conviction
(2) Attempt?
(a) S attempted to break a law that doesn’t exist no liability

Strict Liability

1) = NO mens rea is required for the offense/ a material element of the offense
a) No elemental defense. Statute is quite on mens rea
b) ex. element of age in statutory rape crimes
c) Common Law courts traditionally required MR for all crimes
i) statute that’s silent on mens rea are presumed to have one
ii) how about MPC slient?

53
2) Policy:
a) Tension between fault (retribution 报应) and harm analysis (utilitarian 功利主义)
b) Most academic writings have opposed SL, but recently some academics defend it
c) Opponents:
i) Requirement of culpability is too fundamental to be compromised
ii) Court construe statute in their wish when legislature is silent on the issue
iii) We may want to encourage the business at issue, so shouldn’t punish people who have
taken all reasonable steps to comply with the law
(1) Unless D’s conducts is deemed wrongful/social undesirable in itself (statutory rape)
iv) Imposing severe punishment for strict liability offense violate proportionality principle
d) Proponents:
i) Certain offenses have a serious effect on public interest, but it’s difficult to prove under
the usual procedures
(1) Future harm that 10 acquitted guilty man may do by repeating their own offense or
encouraging others by showing how easy it’s to avoid conviction, may far exceed
any injury an innocent man can suffer by his conviction
ii) Looking at the broader time frame: before harm is consummated, the strict liability
actor could have avoided liability by taking earlier steps that’re hardly impossible
MPC Approach
1) The MPC has no Strict Liability → If strict liability then a violation
a) Offense will be a violation (fine with no jail time) under the MPC, not a crime
b) Only uses strict liability for non-criminal violations
2) MPC 2.02(1) General Requirements of Culpability.
a) “Minimum Requirements of Culpability. Except as provided in Section 2.05, a person is not
guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the
law may require, with respect to each material element of the offense.”
3) MPC 2.05(2) abolish strict liability for true crime, even as to a single material element only
reserve it for non-criminal violations (small fines)
a) Most jurisdictions don’t apply MPC rules: strict liability is generally disfavored, but more
likely to be imposed for “regulatory offenses”
4) MPC 1.04(5) violation
Common law
1) Established common law presumption
a) Offense that requires no mens rea is generally disfavored, some congressional intent,
express or implied, is required to dispense with mens rea as an element of crime. Staple
i) = strict liability is an issue of statutory interpretation of legislative intent
ii) Common law uses: a mental element is essential unless parliament 议会 indicates
otherwise
b) Will have mens rea unless there is CLEAR legislative intent
2) Two steps to solve legislative construction:
a) Looking for legislation indication (implied or expressed) to dispense with mens rea
b) Decide whether it’s public welfare offenses
3) What’s the significance of classifying an offense as public welfare vs. non-public offenses? \

54
 a) In a non-MPC jurisdiction, there is a background presumption of strict liability for public
welfare offenses where the statute is silent on MR. For non-public welfare offenses, there is
a background presumption of mens rea.
b) In a MPC jurisdiction, there is no strict liability anywhere.
i) A legislature still has the power to impose strict liability in an MPC jurisdiction, but they
have to frame an offense as a “violation” as opposed to a crime. Violations cannot carry
criminal penalties, only fines.

4) Morissette v. United States (US. 1952)[NG]: public welfare offense

a) Fact: D is a junk dealer, openly entered an Air Force practice bombing range and took spend
bomb castings lying there for years and exposed to the weather and rusting away. D sold
them at city junk market for $84.
b) Charge: “whoever steals or knowingly converts to his or the use of another or without
authority, sells, conveys or disposes of anything of value of the US, shall be fined…”
i) Larceny type offense: Did D have intent to steal another’s property?
c) D’s defense:
i) he honestly believes the bomb casting is abandoned & owned by nobody
d) Trail court and App Ct:
i) The question on intent is whether or not he intended to take the property
(1) Apply strict liability for element of “of another”
e) Holding: Larceny is not to be construed as strict liability statutes, b/c
i) Larceny is an age-old offense with roots in common law
(1) Tradition CL: mens rea should be read in if statute is silent, unless a clear indication
otherwise. (statute’s mere omission of words requiring criminal intent doesn’t
indicate congressional intent to make an offense a strict liability crime, except in the
case of public welfare offenses.)
(2) Congress presume CL roots carry forward whatever MR was attached in the past
ii) Distinguished Public-Welfare Offense v. Theft/Conversion
(1) Public-Welfare Offense—DON’T require criminal intent----strict liability

55
 (a) acts harmful to public safety/welfare, ex. Liquor/food safety/housing
conditions/misbranded articles/antinarcotic/criminal nuisances/traffic/worker
safety.
(b) Penalties typically minor, don’t hurt reputation too much.
(c) To create an affirmative duty to avoid acts harmful to public health/safety.
(i) D is the best person to prevent harm, so impose a higher duty on D.
(2) Theft/Conversion---DO require criminal intent
(a) Traditional common law crimes
iii) Larceny is NOT public welfare offense, b/c
(1) larceny is not minor offense, but a longstanding felony
(2) Penalty is harsh, b/c D is sentenced to 10 years
(3) Infamy 声名狼藉 is that of a felony—great stigma 耻辱
(4) Invasion of property rights is positive actions, not omission or neglects
(5) No much danger is created, the purpose of statute is about money
f) SCOTUS also refused to set precise test for strict liability offenses
i) b/c concern of possible extended scope of strict lability offense
5) United States v. Balint (US. 1922)[G]: balancing hardship; malum prohibitum 法律禁止犯罪
a) Fact: D was indicted for violating the Narcotic 麻醉 Act of 1914 by selling derivatives of
opium and coca leaves without order required by the Act (publishable for up to 5 years)
b) Court ruled strict liability offense: “no knowledge is required by the statute”
i) b/c this is public welfare offense:
(1) Many regulatory measures in exercise of police power was enacted for achievement
for some social betterment, rather than the punishment of the crime
(2) D is in better position to avoid the risk (transport of drugs) by checking it earlier
(3) D is creating a risk that the offense intends to prohibit
(4) Balancing test for PWO/SL:
(a) weighted the possible injustice of subjecting an innocent seller to a penalty
against the evil of exposing innocent purchasers to danger from the drug—the
latter was the result preferably to be avoided
(i) utilitarian: it’s better to punish innocent seller than innocent buyer
(5) This offense is malum prohibitum (only illegal b/c law forbids it), not malum in se
(illegal b/c it’s wrong)
c) Note:
i) Even a heavy penalty offence can be strict liability if it’s malum prohibitum
(1) D was punished at 5-year sentence here
ii) Even if some factors” calls for opposite result, court may still conclude strict liability
(1) ex. harsh penalty; social stigma
6) United States v. Dotterweich (US. 1943)[G]: relation to public danger
a) Fact: D shipped misbranded drug given by manufactures and did not know they are
misbranded. D was prosecuted for “shipping misbranded or adulterated products in
interstate commerce” in violation of Federal Food, Drug, and Cosmetic Act.
i) Still CL??
b) Court ruled strict liability offense: “no knowledge is required for misbranding”

56
 i) b/c this is public welfare offense
(1) A type of legislation whereby penalties serve as effective means of regulation
(2) D stand in responsible relation to a public danger (health and food industry)
(3) For interest of larger goods.
(4) Penalty is only 1 year
(5) D has more chance to avoid the danger than the customers (innocent public)
(a) Balancing hardship, Congress preferred to place burden upon whose who have
at least the opportunity of informing themselves of the existence of conditions
7) Staples v. United States (US. 1994)[NG]: alerting circumstance
a) Fact: A rifle found in D’s possession met standard of firearm. The rifle originally had a metal
piece that precluded automatic firing, but at some time it had been filed down. D says that he
did not know his firearm fit description of act. D wanted the jury instructions to say that to be
guilty, he had to know that it was a firearm that fit the description under the act.
b) Charge: “possession of an unregistered firearms is punishable up to 10 years”
i) “Firearm”: automatically fire > one shot with a single pull of trigger
ii) No men reas is specified in the statute
c) D’s defense:
i) the rife never fired automatically in his possession and he didn’t know its capability
d) Court ruled NOT strict liability offense: “knowledge is required for element of “firearm”
i) Statutory construction
(1) No clear statement from Congress that mens rea is not required
(2) Legislature likely does not intend to impose strict liability
(a) “it’s unthinkable that Congress intend to subject a law-abiding person to 10-year
prison if what he genuinely and reasonably believes was a normal gun that’s
worn down or secretly modified”
(3) Violation of this offense would be a felony. Felonies are usually not considered
public welfare offenses.
(a) When absent a clear statement from Congress that mens rea is not required, we
should not apply the public welfare offense rationale to interpret any statute
defining a felony offense as dispensing with mens rea.
ii) Not public welfare offense b/c
(1) PWO only regulates potentially harmful or dangerous items
(a) D must know that he’s dealing with a dangerous device of a character that places
him in responsible relation to a public danger”
(b) Possession of a normal gun, if not firearm, is not dangerous
(i) there’s a long tradition of widespread lawful gun ownership by private
individual in this country
(2) D is not put on notice to the existence of strict regulations
(a) buying a rifle gives no more alert of liability/regulation than buying a car
(3) Potentially harsh penalty suggests it’s a felony, not public welfare offense
(a) = key reason of court’s decision
Criminal Homicide

57
1) Grading of homicide: Regicide (who you kill), method of killing, motive, relationship, legal
situation, secrecy
2) Homicide: unlawful killing of a human by another human
3) Murder-homicide with malice aforethought
a) Intent to kill
b) Intent to inflict grievous bodily harm
c) Extreme recklessness (reckless disregard for value of human life/depraved heart)
d) Felony murder: intent to commit felony & death results in commission
4) First degree Murder:
a) Intent to Kill
b) Premeditation & deliberation
c) Special manner (torture, poison, lying in wait, etc.)
d) Specified felonies
5) Second Degree murder: killings not willful, premeditated, or without special manner or
specified felony
6) Voluntary manslaughter is provocation
Common Law Approach

1) Thinking path
a) Q1: criminal or not?
b) Q2: if criminal, how much punishment can be imposed? which factors warrant
greater/lessor punishment?
i) Q1: substantive problem:
(1) Which facts determine whether punishment will be more severe
ii) Q2: institutional problem:

58
 (1) Which decision-making institution (ex. Trail judge/jury) has authority to make the
controlling assessment of these facts.
2) Criminal homicide: unlawful killing of a human being by a human being
a) ex. killing by a dog is not criminal homicide
b) Murder: unlawful killing with malice aforethought
i) “Malice aforethought”: a term of art
(1) Intent to kill
(2) Intent to inflict gravely bodily harm AND the person dies
(3) Extreme recklessness disregard for the value of human life
(a) or depraved heart murder
(4) Felony murder -- Intent to commit a felony & death results during commission
ii) (1) intentional, (2)(3)(4) unintentional
iii) Aforethought:
(1) Thinking about killing
(2) Premeditating killing (conscious purpose to cause death)
c) Manslaughter: unlawful killing without malice aforethought / having something negate it
i) Voluntary manslaughter: heat of passion
(1) Intent to kill + provocation formula(some exception applies) reduce murder to
manslaughter
ii) Involuntary manslaughter: unintentional killing
(1) Negligence
(2) Misdemeanor manslaughter
iii) (i) intentional, (ii) unintentional

3) Pennsylvania Legislation of 1794

a) Became dominant common law grading structure of US
b) Does not redefine murder (still CL meaning), just separate murders into two degrees
c) Murder:
i) 1st degree murder:
(1) Perpetrated by means of poison, lying in wait 埋伏, or other kinds of willful,
deliberate and premeditated killing (WDP)
(a) If use special manner (poison, lying in wait, torture, deadly weapon), it can be
1st degree murder even if it’s an unintentional killing (因为有 intent to gravely
bodily harm?)
(2) Enumerated felonies murder in arson, rape, robbery or burglary (listed felonies)
(a) Felonies murder don’t require intent to kill
ii) 2nd degree murder
(1) all other kinds of murders except 1st degree murder (including unlisted felonies)
(a) killing not WDP/ not in a specialized manner / not enumerated felonies

Willful, Deliberate 深思熟虑 and Premeditated 预谋 Killing (WDP)

a) Graded as 1st degree murder (NB: murder = unlawful killing with malice aforethought)
b) Commonwealth v. Carroll (Penn, 1963)[G]: mere intent to kill (Majority)

59
 i) Fact: D has worked hard and had good relationship with neighbors. D started to have
many quarrels with his wife for his teaching job. His wife has a fractured skill in jumping
his car which resulted in mental disorder. His wife started to hit and abuse their
children. One night, they have quarrels, his wife fell asleep, D was blacked out and
grabbed the pistol (his wife asked him to put there) and shot his wife twice in the head.
ii) There is no set amount of time necessary to form an intent to kill for first-degree
murder;
(1) Premeditation can come into existence for the first time @ time of killing
(2) Deadly weapon rule: intent to kill (first degree) can be inferred from the intentional
use of a deadly weapon upon a vital body part of a human being
iii) D was charged of 1st degree of murder—WDP killing (life imprisonment)
(1) Penn 1794 legislation applies at this time
iv) D’s argument:
(1) insufficient evidence for premeditation in light of his good reputation+ experts’
opinion: emotional impulse killings
v) Carroll’s approach: mere intent to kill can be PD killing – Deadly weapon doctorine
(1) Specific intent to kill for 1st degree murder may be reasonable inferred from a D’s
words/conduct or the circumstances surrounding the killing
(a) 1st v. 2nd = “specific intent”
(b) From Deliberate use of a deadly weapon on a vital body part of another
(i) From D’s statement: upset with wife, remembered the gun, deliberately
took gun down+ shot at head
(ii) From D’s action: indicated a willful, deliberate, premeditated murder
(iii)Statement+ action →D possessed the specific intent to kill required for 1 st.
(2) Deadly weapon rule: Jury can infer intent to kill from D’s using of deadly weapon
(ex. pistol) on a vital part of the body
(3) “No time is too short for premeditation…whether the intention to kill and the killing,
the premeditation and fatal act, were within short/ long time is immaterial…”
(a) Equates any intent to kill with premeditation = majority approach (most states)
(i) Simple more consistency
(ii) Lose characters of distinguishing factors of PD
(iii)Eliminate distinction b/w 1st and 2nd degree murder for intentional killing,
bc can infer premeditation all the time
1. Any intentional killing is 1st degree
2. Wipes out 2nd degree for intent to kill murders (still there for felony
murder)
(iv)Not completely eliminate distinction b/w 1st and 2nd degree murder
1. some unintentional killings may have malice to qualify for a 2nd degree
murder, but not 1st degree murder (since malice is defined broadly)
(4) D: time &place of crime, lack of escape plan…. → impossible to find premeditation
(a) No. this is “jury argument”. Crystal clear that the circumstance don’t negate
premeditation.
(5) D: experts’ opinion: emotional impulse killings

60
 (a) Jury & judge don’t have to believe D/witness’s testimony
(b) Psychiatrists’ opinion is unreliable bc it is based on the statement which D made
to him.
(c) Psychiatrists’ opinion is very little weight, especially D’s own
action/testimony/confession/facts belie the opinion.
c) State v. Guthrie (West Virginia, 1995)[NG]: some reflection time (Minority)
i) Fact: D had good relationship with the victim (his collogues). One night, the victim make
fun on D and flipped the towel on D’s nose. D then pulled the knife form his pocket and
stabbed the victim in the neck and arm as he fell to the floor. D has psychiatric problem,
especially an obsession with his nose.
ii) Premeditation requires time -- To be guilty of 1st-degree murder D must have had a
period of time between the development of the intent to kill and actual killing to show
premeditation & lack of impulsiveness
(1) Need evidence defendant had:
(a) Formed intention
(b) Time to Reflect: Period of time between formation of intent to kill/actual killing
that indicates opportunity for reflection
(c) Consideration of Action: evidence D considered/weighed his decision to kill to
establish premeditation/deliberation
iii) Trial court’s instruction = Carroll’s approach:
(1) “In order to constitute a premeditated murder, an intent to kill need exist only for an
instant…what is meant by the language WDP is that the killing be intentional”
(a) Commonly referred as Shrader instruction
iv) App court reversed, thinking “Carroll’s approach makes “premeditation” superfluous &
eliminate any distinction b/w two degrees of murder”
v) Guthrie’s approach: DP means more than intent
(1) “There must be some period b/w the formation of the intent to kill & the actual
killing, which indicated an opportunity of some reflection on the intention to kill
after it is formed… there must be some evidence that D considered and weighed his
decision to kill in order to establish premeditation and deliberation.”
(a) Requires actual reflection but what kind of evidence is sufficient?
(b) Distinguishes b/w mere intent to kill vs. intent + premeditation
(i) avoids rendering statutory terms superfluous as a matter of statutory
interpretation
(ii) criticize: premeditation is s not a fact, too discretionary standard can lead to
racially-biased biased moral judgments.
(c) “deliberate”深思熟虑= reflecting long enough to make a choice, even if for a
moment
(i) Dissent: there is a requirement for any specific amount of time to pass
between forming intent and the act of killing.
(d) “premeditated”预谋= thinking of a proposed action before executing
(2) 1st: involves reflecting upon the intent to kill and a deliberate choice; 2 nd: involves a
spontaneous 自然的 intentional killing

61
 (3) Planning & motion & manner
vi) Court instead re-convicts under Anderson factors (残忍杀害 10 岁小女孩，砍 60 刀)
(1) Premeditation requires:
(a) Planning activities: fact regarding D’s behaviors prior to the killing that might
indicate a design to take life
(i) Guthrie: had a knife in his pocket, took off his gloves. D brought a knife to
work, indication planning?
(b) Motive & Relationship between defendant & victim: facts about defendant’s
prior relationship with victim that might indicate a reason to kill
(i) Guthrie: psychiatric issues, prior relationship, refuse to be flipped on nose
(ii) 一级和二级之间，一级更重是因为冷静的杀人要跟割裂，但是考虑到
motivation, an unplanned killing may present a more culpable offense than a
reflective killing.
1. Anderson suggests that what premeditation misses is the moral
importance of the motive for the homicide.
2. Follow MPC, some state rejected premeditation
a. Prior reflection may reveal the uncertainties of a tortured conscience
rather than exceptional depravity. 长期思考反而体现犹豫、良心折
磨. long internal struggle might bc extraordinary circumstances than
a true reflection of the actor’s normal character.
(c) Manner of killing: evidence that a preconceived design-Manner of killing was so
particular/exacting D must have intentionally killed according to preconceived
design
(i) Guthrie: stabbing in the neck (show some preconceived design),
d) Hypo:
i) An evil gangster was in car with his fellow gangster and in sudden whim, shot a
passenger on the street just to impress his fellow gangster.
(1) Carroll: 1st degree murder (intent to kill is enough)
(2) Guthrie: 2nd degree murder (sudden whim  no reflection on intention)
(a) But isn’t this the kind of crime we want to classify as among the most heinous?
ii) People v. Anderson: father stabs 10-year-old daughter 60 times, some post-mortem,
blood all over the house
(1) Carroll: 1st degree murder (at some point father must have intent to kill)
(2) Guthrie: 2nd degree murder (no evidence of planned killing, nothing in prior
relationship reveals any motive, manner of killing shows an explosion of violence
w/o preconceived design to kill)
(a) But Anderson is definitely more brutal and blameworthy than Guthrie
iii) State v. Forrest: After long thoughts, D grants request of father dying of fatal disease to
put him out of his misery.
(1) Carroll: first degree murder (has intent to kill father)
(2) Guthrie: first degree murder (has a long time for reflection)
(a) But Forrest is definitely less culpable than the gangster and Anderson

62
 (b) Premeditation is NOT an appropriate requirement for identifying the most
serious homicide
(c) That’s why majority courts are so reluctant to take “premeditation” seriously
e) Factors to consider more in classic grading structure of murder
i) Motive, manner of killing, planning activity—from Anderson
ii) Identity of victim, ex. child, peace officer, president
iii) Pain of victim, ex. torture
iv) Consent, duration
f) MPC abandons PD killing
i) “Case of mitigation 减轻/缓和 should not depend on distinction b/w impulse and
deliberation”
(1) Prior reflection may indicate uncertainties of a tortured conscience 良心 rather than
exceptional depravity
(2) Most mercy killings result from long and careful deliberation
(3) Sudden killing may simply reveal callousness so complete and depravity so extreme
that no hesitation is required

Voluntary manslaughter
1) Voluntary manslaughter: Criminal homicide where there is no malice aforethought. Provocation
formula can downgrade 2nd degree murder to voluntary manslaughter.
2) Provocation Formula:
a) Intent to kill + provocation formula  mitigate murder to voluntary manslaughter
b) Proponents:
i) Partial justification: it’s morally justifiable to make punitive return against someone
who intentionally cause D serious offense/moral wrongs ---moral wrong by both parties
(Maher)
(1) Justification: victim’s bad acts make D’s act more justifiable/less wrongful
(a) ex. self-defense
ii) Partial excuse: loss of control at the moment is understandable in light of the fragility of
human nature (Maher)
(1) Excuse: reduce D’s culpability, ex. insanity
c) Opponents:
i) Reasonable people do not kill no matter how much they’re provoked, we cheapen both
life and responsibility by maintaining the provocation defense
ii) Both aggressors and juries view the world through lenses of cultural construction—
those in favor of man—the law must take a normative stand & abolish provocation
d) Never justified when the victim is an innocent bystander or defendant elicits the
provocation
e) Provocation formula:
i) Heat of passion (subjective): was the killing committed under and as result of influence
of passion or in heat of blood? ---- Acting rashly/without reflection/due deliberation
(1) Subjective standard: “D indeed acts rashly or without due deliberation or reflection”

63
 (2) w/ objective element: “reason must be disturbed by passion that might render an
ordinary men act rashly”
ii) Adequate provocation (objective): was the heat of passion produced by adequate or
reasonable provocation? --- would an average person react this way/be provoked? Must
be reasonable
(1) Minority approach (Flexible Maher Approach): let jury decide “reasonableness”
case-by-case
(a) Dissent: D must witness the action, not only verbal confirmation
(2) Majority (Categorical Girouard Approach): categorial approach & word alone is not
enough
(a) Some courts softened “word” rule: if word reveal facts that’s sufficient if D had
observed them directly, then word alone can be adequate provocation
iii) Cooling time (objective): was the killing committed before a reasonable time has
elapsed for the blood to cool and for reason to resume its habitual control? ---
reasonable amount of time
(1) Majority approach (Maher): leave jury to decide whether the time was reasonable
under all the circumstances of this case
(a) mostly objective, but with some subjective outlays
(b) If significant lapse of time b/w killing and provocation no mitigation
(2) Rekindling 重新点燃: avoid cooling-time limitation by arguing the event
immediately preceding killing rekindles an earlier provocation
(a) Most courts are not willing to allow rekindling of prior provocation UNLESS the
rekindling event itself satisfy adequate provocation
(i) Cooling time is counted from the provoking event
(b) Some courts may allow rekindling / let it be an issue to go to jury
f) Maher v. People (Mich. 1862)[NG]: jury question
i) Fact: D followed his wife and another man to the woods. 30 minutes later they came out
from woods and D followed the man to the salon. Before he enters D was told by his
friend that he saw his wife and the man slept the woods before. D was enraged and shot
the man in the left ear.
ii) Defendant can be charged with manslaughter instead of murder if every element of the
provocation formula is met:
(1) Heat of Passion (defendant is emotional) (subjective/no reasonableness)
(2) Adequate provocation (reasonable person would react same way as defendant did)
(objective-reasonable standard)
(3) Cooling time (whether there has been enough time for defendant to “cool” down
(objective/reasonable standard)
iii) Charge: “assault with intent to kill”
(1) Not murder b/c D did not kill the man (who’s not dead)
(2) D argues that the charge should be assault with intent to commit manslaughter.
(3) But provocation formula may mitigate the charge to assault: if D had only intended
manslaughter, can’t be assault with intent to kill
iv) Court ruled sufficient evidence of provocation to go to jury

64
 (1) Court says the question here is if there was “adequate provocation,” and were words
alone enough? Court basically says this is a fact question, so a jury needs to decide.
(2) Maher adequate provocation (Minority):
(a) let jury decide whether it’s “reasonable” case-by-case: “such a state of mind in
ordinary men and which the jury are satisfied did produce it.”
(i) Not confined to any categories or precedent.
(ii) Essentially a fact question  if there is reasonable doubt, send it to the jury
(3) Dissent: “provocation must be given in the presence of the person committing the
homicide”
(a) Maher didn’t actually see his wife having sex with victim—verbal confirmation
is not enough to stir the heat of passion of reasonable man
(b) if D actually seen the act easier to argue heat of passion (b/c it’s subjective)
v) Under Carroll---defendant had intent (all that’s needed for 1st degree)
vi) Guthrie---there was opportunity for reflection during the walk form woodsSaloon so
1st degree
vii) Reason needs to be really disturbed/obscured by passion to an extent that ordinary
men would also be liable to act rashly without due deliberation of reflection from
passion rather than judgment
g) Girouard v. State (Maryland. 1991): categorical (Majority)
i) Fact: D and his wife married for 2 month and both in army. The marriage was intense
and strained. One night, D’s wife insulted D’s sexual ability, never want to marry him,
want divorce and court martial, steps on D’s back and pull his hair, and keep saying
“what are you going to do?” D lunged her with the kitchen knife hidden behind the
pillow and stabbed her 19 times. D then slit his own wrist, failed then called the police.
ii) Girouard adequate provocation (majority):
(1) Traditional provocation categories - Words aren’t enough to constitute
provocation, must include bodily harm like
(a) Extreme assault or batter upon the defendant
(b) Mutual combat
(c) Illegal arrest of D
(d) Injury or serous abuse of a close relatives of D
(e) Sudden [physical] discovery of a spouse’s adultery
(i) Require D’s actual physical presence in the very act of intercourse
1. simple verbal knowledge is not enough
(ii) Legal marriage? Same-sex? some courts remove the last category
(f) Why set categories as such high bars?
(i) people get into arguments all the time
(ii) consistency, give guidance to jury, limit the scope of provocation
(iii)arbitrary, how would close friend be very different from close relatives
today? Or why only legal marriage but not love relationship?
(iv)Disadvantages of the categorical approachCan’t get ALL of the categories
(wife in sexual activity, fiancé, etc.)
(g) Here, D’s case does not fit into any of traditional categories
(i) b/c pulling hairs and stepping on back is not extreme battery

65
 (2) Word alone is not enough to be adequate provocation
(a) Social necessity: domestic arguments easily escalate to furious fight, but we
shouldn’t let them result in killing and death
(3) But word can constitute adequate provocation if they’re accompanied by conduct
indicating a present intention and ability to cause D bodily harm
(a) Words CAN be adequate provocation if they disclose information that could
arise an adequate provocation-Bordeaux
(b) Here, no such conducts were exhibited by D’s wife:
(i) D could not reasonably have feared bodily harm from his wife’ pulling his
airs and stepping on his back, b/c their disparity in size, strength, & weight
(4) Provocation NOT justified when --- Hypo 里面 court splits!!!
(a) Victim is non-provoking innocent bystander
(b) D elicits the provocation. D 引起挑衅
h) Hypos:
i) If man hear that his wife saying she’s having adultery with another man and
immediately killed his wife
(1) Maher: jury decide whether it’s reasonable for D to be provoked in the situation
(2) Girouard: not “physical” discovery of act of adultery—word alone is not enough
(a) but may establish adequate provocation in the softened “word” rule
ii) If A beats B’s wife brutally in front of B. B is outraged but cooled down after 5 minutes
(reasonable person would still be outraged), but then B kills A anyway
(1) Heat of Passion: Not met. This is a subjective standard, and B has cooled down when
he kills. so he’s not in heat of passion (subjective test) → no mitigation
(2) Cooling Time: Met. This is an objective standard. B reasonable person would not
have cooled down in five minutes.
(3) Adequate Provocation: Met. This is an objective standard. This would qualify in a
category that warrants provocation.
iii) A see provocation by B. After 2 weeks, he sees the B’s smile and kills B
(1) Some courts can argue rekindling of fire may be mitigation
(2) Most courts: cooling time (2 weeks) is long enough & rekindling event (smile) is not
itself an adequate provocation no mitigation
iv) A sees wife in bed with B. A gets angrier with time and, two weeks later, kills B. -----
provocation argument? No.
(1) Heat of Passion: Met.
(2) Cooling Time: Not met. This is an objective standard. A reasonable person would
have cooled down within two weeks.
(a) Exception: Some jurisdictions consider a “rekindling” action to reset the cooling
time. So, if A saw B smile slyly or something like that and then killed, maybe that
would count.
(3) Adequate Provocation: Met. This is an objective standard. This would qualify in a
category that warrants provocation.
v) Derivative provocation:
(1) kill the person who laugh after the provoker’s insult/offense  unclear
vi) Misdirected reaction:

66
 (1) Mistaken another as provoker and kill him split among courts
vii) Victim is a non-provoking innocent bystander
(1) Most courts: provocation defense is not available
viii) D elicits the provocation
(1) Regina v. Johnson: can still have provocation as issue for jury to decide
(2) Some courts preclude the provocation defense

3) Extreme Emotional Disturbance (EED). MPC

a) Not widely adopted by the states, only 12 of them adopts EED (b/c it’s too broad)
b) EED is an affirmative defense to murder IF:
i) D acted under the influence of an extreme emotional disturbance (subjective)
(1) Intense feelings sufficient to cause a loss of self-control
(2) Sweating, uncomfortable mess, situational, etc.
ii) For which there was a reasonable explanation or excuse for the EED (objective)
(1) Not a strictly reasonable person, but a reasonable person in D’s situation under
circumstances as D believed them to be (if the reasonable person were put in this
situation). ----look at it from who was emotionally disturbed
(a) Broad, Satisfying the test only gets the question to the jury
(b) Particular frailties 弱点 of a person excluded (not everything is EED just bc it’s
not sever enough to be a mental disorder)
(c) Determined by the viewpoint of a person in the actor’s situation under the
circumstances as D believed them to be
c) EED vs. Provocation Formula
i) EED is much broader
ii) EED has no cooling time limit, but provocation formula requires immediacy
iii) EED focuses on D’s subjective mental trauma, but provocation formula focuses on
external provocations(reasonable person?) (which EED does not require)
iv) EED focuses on excuse (D is not blameworthy)) & , but provocation formula considers
both. provocation is more of a justification (D is not wrong)
v) EED has no requirement of provocation
vi) EED is more lenient 仁慈 very likely to go to jury, even more so than provocation under
Maher approach.
vii) In EED jury plays bigger role (fact finding); in provocation judge pays bigger role in
categorical approach
d) People v. Casassa (NY. 1980)[G, EED not defense]:
i) Fact: victim broke up with D and devastated him. D started to follow victim, went to
room below eavesdropping her, break in her room and lying on her bed. One night when
D visited victim with gifts, got rejected, produced a steak knife and stabbed victim
several times in the throat and dragged her body to the bathroom and submerged it in a
bathtub fill of water to make sure she’s dead
ii) If the defendant acts under extreme emotional disturbance for which there was a
reasonable excuse they will be charged with manslaughter instead of murder
(1) Reasonable excuse will be judged from a person in the defendant’s circumstances as
the defendant believed the circumstances to be

67
 iii) Trial court convicted D as 2nd degree murder
iv) Two Elements (NY penal code& MPC):
(1) D acted under the influence of extreme emotional disturbance
(a) subjective: whether D did in fact act under EED and the claimed explanation of
the cause of his action is not sham
(b) = a threshold question that must be asked before any test of reasonableness
(2) AND There’s a reasonable explanation or excuse for such EED (reasonableness is
determined from a viewpoint of person in D’s situation as D believed him to be)
(a) Designed to sweep away rigid rules of provocation categories
(b) objectively but w/ subjective element:
(i) b/c must assess “reasonableness” from the standpoint of subjective internal
situation and external circumstance D perceived him to be
(c) MPC’s approach of “D’s situation”:
(i) Personal handicaps and some external circumstances are included
1. ex. Handicaps, blindness, shock from traumatic injury, and extreme grief
(ii) But idiosyncratic 独特 moral values are not included
1. ex. assassins kill apolitical 不关心政治的 leader b/c he believes it’s right
to do so
(iii)Ultimate test = whether actor’s loss of self-control can be understood in
terms that arouse sympathy in the ordinary citizen (aka, jury)
(d) Policy: to broaden the heat of passion doctrine to apply to wider range of
circumstance, while retaining some element of objectivity in the process
(e) Paradoxical 自相矛盾: try to be more subjective, but in the end, it is objective
(i) ex. Casassa court consider all mitigating factors D provides (ex. his mental
disability) but still finds excuse is too peculiar 奇特 to D to be reasonable
v) Under CL’s provocation formula:
(1) Not in heat of passion: it has been 3 months since their breakup
(2) Not adequate provocation:
(a) Maher: a reasonable person won’t think it’s normal to kill your ex-girlfriend
after she breaks up with you
(b) Girouard: word alone is not enough; does not meet any traditional category

Extreme Reckless/Depraved Heart Murder --- Murder vs. Involuntary Manslaughter

1) Anything under extreme recklessness is just involuntary manslaughter
2) Scale of culpability—negligence reckless

68
3) Elements: - (Extreme recklessness: Charge is 2nd degree murder)
a) The conscious disregard 有意识漠视 (awareness) of an
i) Actor must first subjectively aware some risk
b) Of an Unjustified risk to life
i) Justifications can discount the level of risk we think D has taken (or lessen heartiness)
(1) First discount whole risk by the justifiable part, then see how high the residual risk
is to decide whether it’s still enough for extreme recklessness (extremely high risk)
(2) Courts don’t approach cases this way, but a good analytical strategy---see HYPO
c) That’s extremely high (more than substantial and unjustifiable)
i) For driving cases, driving speed can decide whether the risk is high enough to be
extreme reckless instead of regular reckless
d) Showing an extreme indifference to the value of human life (colorful language in CL) MPC:
i) (in general; not specifically to the person who died)
Commonwealth v. Malone (Penn. 1946)[G]: “Russian Poker”
a) Fact: D was friend with victim. D got a 32-caliber revolver with 5 chambers from his uncle
and the victim got cartridge 子弹 from his father and they put the carriage on. D met with
victim, took the gun, and loaded the chamber to the right of the firing pin. They decide to
play “Russian Poker” and victim died of the 3rd trigger. D felt really sorry for killing his
friend.
i) Fact issues: how could victim be killed at 3rd trigger when bullet is to the rightest?
(1) Did D load the gun before the day of killing?
(2) Did someone else load the gun before both D and victim got the gun?
b) The malice aforethought necessary for murder can be shown by gross recklessness with
high anticipation of death, making the defendant guilty of second degree murder
i) Gross recklessness with anticipation of death = evil, malignant heart
c) Charge: 2nd degree murder:
i) Murder = unlawful killing with malice aforethought
d) Issue: did D have malice aforethought?
i) Method 1: intent to kill under deadly weapon rule? –unclear

69
 (1) By using a deadly weapon, we can argue D knows the weapon can skill the victim,
thus having intent to kill
ii) Method 2: “the dictate 命令 of a wicked, depraved 堕落 and malignant 恶毒 heart”
(1) = “act of gross recklessness for which the actor must reasonable anticipate that
death to another is likely to result; intentional doing of an uncalled-for 不必要 act in
callous 无情的 disregard of its likely harmful effect on other”
(a) Subjective awareness of risk is required (even just for regular recklessness)
(b) Subjective awareness required, likely to result, callous disregard
(c) How much risk? –does not translate to percentage
(i) Ordinary recklessness substantial risk
1. even 1% of risk could be substantial if the stake is human life
(ii) Extreme recklessness  extremely high unjustifiable risk
(d) Gross recklessness with high anticipation of death will constitute malice
aforethought
(i) Death must be likely to occurr
e) Did victim consent to his death by saying “go ahead”?
i) victims can’t consent to their murder/assault (MPC § 2.11(2))
f) What if D believed the gun was unloaded?
i) MPC Presumption of firearm:
(1) reckless is presumed when the actor knowingly points firearm at the direction of
another involuntary manslaughter (under extreme reckleness)
ii) Some jurisdictions: enough for extreme recklessness  murder of 2nd degree

United States v. Fleming (4th Cir. 1984)[G, 2nd]: crazy drunk driving
a) Fact: D was drunken at .315 blood alcohol level (many times of sober), driving at 70-100
mph (speed limit is 30-45 mph) and going in the opposite direction toward coming cars, lost
control after 6 miles and struck the victim who died at the scene.
b) Reckless, wanton (deliberate), and grossly deviated conduct with a disregard for human life
will constitute malice aforethought
i) Along with awareness of a very serious risk
ii) Heart without regard for human life (extreme indifference)
c) Extreme recklessness:
i) Conscious disregard of/Unjustified risk to life/That is extremely high &
showing/Extreme indifference to human life
d) Charge: 2nd degree murder
e) Court added new element to malice aforethought:
i) = “reckless and wanton 荒唐 and a gross deviation from a reasonable standard of care,
of such a nature that a jury is warranted in inferring that D was aware of a serious risk
of death or serious bodily harm”
(1) actual awareness of serious risk of death or GBH 严重身体伤害？
(2) departure from the established standards and disregard for human life
(a) CL: wicked, wantonness, depraved and malignant heart
(b) MPC: extreme indifference of human life

70
 (3) difference b/w murder and involuntary manslaughter is one of degree rather than
kind (one can establish malice, another cannot)
f) Intoxication is not defense:
i) Subjective awareness of risk is not required to establish recklessness IF the actor was
unaware of such risk because of voluntary drunkenness --- held to the standards of a
sober person
ii) MPC §2.08(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
(1) Recklessness must be an element of the offense
(2) Essentially make negligence (drinking before driving) sufficient for murder
g) As Flemings, most courts hold the egregious 惊人的 dangerous driving can support murder
i) It’s presumed that D had an actual awareness of a great risk fatal harm
h) Level of risk can be discounted by the level of justification (decided based on the residual
risks after the justification)
i) Manslaughter vs. Murder
(1) Fleming: Murder (extreme recklessness) is markedly different in degree of
recklessness
(2) Fleming, Malone, MPC: depraved 堕落 heart, indifference 漠不关心 to human life
(3) Ex: firing a gun at a moving car, construction worker throws cinderblock on
sidewalk, opening lion’s cage at the zoo. D doesn’t necessarily direct one person, but
still has no care for like. The residual unjustified risk is extremely high, and D
disregards.
4) Hypos:
a) You are really hungry and drive 125 mph on a curving road in partly residential district
(speed limit is 25 mph), to McDonald. Lost control in sharp curve & killed a child on bicycle
i) Extreme reckless → murder, but what if driving at 70, 60, or 50 mph?
ii) Driving speed can decide whether it’s extreme reckless / reckless /negligence
b) Same as above except you’re driving to hospital carrying a dying child who can be saved if
you get to the hospital earlier. And this is the shortest way to get to the hospital
i) Most say this justification defends D from any murder or manslaughter. The level of risk
is discounted by the justification. In this case, because the justification is so high the
level of risk would need to be extremely high to count as extreme recklessness
ii) More risk is justified now  extreme reckless only over 90 mph
iii) Seriousness of risk can be discounted by justification
(1) Courts don’t approach cases this way, but a good analytical strategy
c) D fired a rifle straight up in the air 6 times at a crowded 4th of july celebration as a
noisemaker. One bullet comes down and kills his son
i) Would need more information on how risky it was to shoot a bullet into the air, and did
the man “consciously disregard” that risk.
ii) Extreme high risk?
(1) If firing straight up bullet eventually loses its force not extreme high risk
(2) If not straight up bullet regain original speed as going down extreme high risk
iii) Even if father is drunken, his intoxication is no defense under MPC
Murder vs. Voluntary Manslaughter (would be murder if not for prov. formula or EED)

71
 d) Hunter is out in the wood 20 miles from a city during hunting season, fires gun 6 times in all
directions, believing no risk exists, kill someome.
i) Hunter is not aware of risk, so can’t be extreme recklessness. Hunter is negligent, so is
guilty of involuntary manslaughter.
ii) Negligence involuntary manslaughter (reckless is also involuntary manslaughter)
(1) b/c the hunter believes there’s no risk, thus did not subjectively aware of any risk
e) The hunter, not knowing there are other people in the woods, aware there’s armor-piercing
bullet in his gun and shot 6 times. Kill someone. This jurisdiction provides that all murder
w/ such bullets is 1st degree murder
i) Statute doesn’t apply here, b/c it must first be murder to upgrade to 1st degree, but D
only committed involuntary manslaughter
(1) Hunter still not aware of risk, so can’t be extreme recklessness. Exception would be
if there a statute like in California that made it a felony to carry armor-piercing
bullets.
f) The hunter is in deep woods, falls and breaks leg and is unable to walk; 4 days later he fires
gun 6 times in the air to attract attention, killing a member of the searching party
i) Justification defense: justification greatly reduces the risk can argue it’s not even a
crime.
(1) Involuntary manslaughter requires a negligent mens rea.
g) The hunter points a rifle to his hunter buddy who’s standing next to a high cliff, with intent
to shoot his hunting hat off head and missed. The bullet fly across the cliff and kill a person
drinking water in the valley in the wild
i) Transferred extreme recklessness (in causation section of MPC)
(1) When conduct is the cause of the result, if purpose is the required mens rea, similar
injury will suffice (intend to kill one person, kill someone else on accident – that’s
transferred intent)
(2) For reckless/negligence: applies only in cases where result is different b/c different
person
(3) Hunter’s extreme reckless (in shooting his buddy’s hat) is transferred to the person
killed in the wild
(4) MPC 2.03(2) and (3): when P/K/R/N causing a particular result is an element of an
offense, the element is established if actual result differs from expected result only
in the respect that a different person or property is injured
(a) Can jump across the person, but can’t jump across the crimes
(i) like if you hit a vase and kill a person, not transferred intent
5) MPC Approach
a) Reflect both common law and statutory treatment
b) Some parts are commonly adopted (ex. REI), some parts are not
i) “REI” is a better definition than “depraved heart”
c) Inadvertent risk creation (aka, negligence) cannot be punished as murder
i) Rationale: murder requires proof of REI; felony sanction should be based on
subjectively culpability of the actor
ii) Exception: intoxication presumed to be recklessness

72
 (1) State v. Dufield: REI is not evidence of subjective state of indifference, but objective
measuring of greater degree of gross deviation than recklessness
d) Incorporate murder of “intent to inflict GBH” into REI:
i) intent to inflict GBH = show some recklessness of risk of death
ii) Common law: treat it as an independent way to establish malice (and murder)
iii) MPC: omitted it b/c REI captures all non-intentional homicides that should be elevated
to murder

Felony Murder Rule

1) For FM, must look at the predicate felony (the felony on which the murder is based)
2) History:
a) Felony murder rule was originally created, b/c
i) Most felonies are punished as death
(1) But now many felonies have lighter punishments
ii) Attempted commissions are punished as misdemeanors
(1) But now attempt are punished as completed crime
b) Really unpopular worldwide (England abolished felony murder rule completely)
i) But in US, most courts still use the doctrine, despite MPC’s calling to modify it to be a
rebuttable presumption
3) Policy:
a) Disadvantages:
i) Punishment is dipropionate to the culpability—violate just punishment
(1) Purely accidental killing (not even satisfy negligence) can be convicted as murder
(even 1st degree) and punished to death
(2) No way to get that if there’s no felony murder rule
ii) Many careless, accidental killing cannot be prevented even w/ the most care
b) Advantages:
i) Deter careless, accidental killings during the felonies & the felonies themselves
ii) Deter even intentional killings b/c felon will know they can’t get away from even
accidental killings
iii) Punishment is proportionate to the harm
iv) Ease the burden on the prosecutions to prove murder on culpable D
4) Elements of felony murder rule: it is a felony-murder if
a) #1. The actor or his accomplice, acing in furtherance of the felony
i) State v. Canola Agency theory (majority) vs. proximate cause theory (minority)
ii) Lethal act after the commission of the felony?
iii) Lethal act is arguably unrelated to the felony?
iv) Lethal act is committed by someone resisting the felony?
b) #2. Cause the death of a human being
i) No mens rea required with respect to killing
ii) Direct, causal result
iii) King v. Commonwealth , Exception: People v. Stamp --- eggshell
c) #3. In the commission / attempted commission, of a felony

73
 i) = any time from attempt "immediate flight" (which is over when place of security is
reached)
d) [#4]. (the felony) that’s inherently dangerous to human life
i) “considered in the abstract” (Philips) or “in the manner committed” (Hines) (Majority)
ii) Focus on the predicate felony
e) [#5]. that that does not “merge”
i) Has a Independent felonies purpose (from the very assault that causes the death)
ii) Focus on the predicate felony
iii) Merge: if a defendant commits a single act that simultaneously fulfills the definition of
two separate offenses, merger will occur. This means that the lesser of the two offenses
will drop out, and the defendant will only be charged with the greater offense.
iv) Burton: has an “independent felonious purpose” = a purpose apart from the very assault
that resulted in death.
5) Not great at matching culpability with punishment but great for deterrence → Usually strict
liability for felony murder
a) No mens rea required with respect to death; Disconnect between culpability/liability
b) Maybe felons will be more careful about committing felonies? Maybe it could deter felonies
in general?
c) No transferred intent from the felony to the murder (reason for the merger doctrine)
6) “But for” the felony, the death would not have occurred; result must be the natural/probable
consequence
7) ? how to decide 1st degree 2nd degree?
i) specified felony?
ii) Only 1st degree? Burton “” if death results from his commission of that felony (one of the
enumerated felonious) it will be first degree murder
b) Shortcut?
8) #1 “Actor/accomplice, in furtherance of the felony”:
a) In furtherance = killings that further the criminal purpose
i) Kill – commission of the felony
(1) → if action be considered necessary to successfully complete the crime → in
furtherance – 1st degree murder (?enumerated felony?)
(2) → accident occurred after the getaway was complete → involuntary manslaughter /
no crime
(3) killing that promotes/facilitates the commission of felony before/during/after the
commission of felony
(a) People v. Cabaltero: leader robber killed stupid co-felon who make noise; all
participating robbers are liable for his death, b/c the shooting helped ensured
the success of the ongoing robbery
(4) Killing after commission of felony is in furtherance if D’s acts are necessary to
successfully complete his crime and not when his getaway (escape) was complete
(a) ex. a burglar causes a fatal accident while making his getaway = in furtherance
(b) People v. Gillis: D abandon burglary attempt and drove away, 10-15 mins later
and 10 miles from home, police tried to stop him. D sped away and collided with
another vehicle, killing 2 passengers.

74
 (i) Michigan court ruled D was fleeing from burglary (guilty of felony murder),
not fleeing from police officer who pulled him over
(c) If no FMR, 警察倒车，checking 后，没看到蹲在他车旁边的人，慢慢倒车。die
after 3 month.
(i) Mens rea
1. Negligent? Reasonable person standard.
a. Already checked
(ii) causation
ii) unrelated to the felony--no
(1) Felon is not liable for a co-felon’s killing committed in a felony not related to the one
he helped or intended
(a) ex. AB co-felon. B planed to arson. A decided to rob after entering the building.
And accidentally kills the tenant in process of robbing.
(i) A: guilt of felony murder, “in furtherance” doesn’t atter. Predicate felony of
robbery is sufficient established felony murder. Arson doesn’t matter.
(ii) robbery by co-felon A is unrelated to arson that co-felon B heled plan, then B
is not guilty for either the robbery or resulting killing.
1. But if robbery somehow furthers the arson plan, B could 1st degree
murder.
a. “in furtherance” has double duty: A and B(because of A) - people are
usually liable for the criminal acts of someone else when they
intentionally aid or encourage those acts or when those acts are
reasonably foreseeable in furtherance of a common goal
iii) committed by someone resisting the felony
(1) State v. Canola (NJ. 1977): [not liable for victim killing of co-felon]
(a) Fact: store owner engaged in fight and shooting with one of 4 robbers to resist
an armed robbery. Both owner and a co-felon (killed by the owner) are killed.
(b) Agency theory: held guilty when it is committed by the felon’s own hand or
someone in concert; killing must be done by felon, co-felon, or one acting in
furtherance of the felonious undertaking
(c) Felony: robbery
(d) Can a felon be liable in felony murder for the death of a co-felon caused by third
party’s resistance?-- No
(e) Court ruled D is not liable to victim’s killing of co-felon under agency theory
(i) Agency theory (majority approach):
1. A felon is only liable for acts committed by himself / someone in concert
of him in furtherance of a common object (actual or constructive acts)
a. Focus on the identify of actual killer: only killing by felon, his
accomplice, or one acting in furtherance of the felony
b. Must be in furtherance of felony
i. When does a felony begin/end
ii. Begins with initiation of mens rea/actus reus @ attempt
iii. Fleeing still counts as the act of the felony, not done until the
criminal acts “safe”-like splitting up the money

75
 c. ex. if a 3dp (victim/police) killed a person (co-felon/police/victim/
stranger), D is not liable b/c the killer does not act in concert of D or
in furtherance of the felony
d. ex. D grab others as shield while escaping and person shot dead by
the police  D constructively commits the killing felony murder
(ii) Proximate cause theory (minority approach):
1. A felon is liable for any death proximately results (foreseeable) from the
felonious action (any co-felon can be held liable for the deaths of
bystanders, third parties, and co-felons.)
a. Focus on whether killing is within the foreseeable risk, not on the
identity of killer
b. ex. resisting victim kills co-felon; police kill innocent bystander
while trying to apprehend felons; co-felons kill while try to escape
c. Proximate cause type statutes
i. New York Penal Law: A person is guilty of murder if, “in the
course of and in furtherance of [designated felonies,] he, or
another participant . . . causes the death of a person other than
one of the participants.
ii. New Jersey: a person is guilty of murder whenever he commits
or attempts to commit a designated felony, and “in the course of
such crime or of immediate flight therefrom, any person causes
the death of a person other than one of the participants . . . .
(iii)Which theory is better in light of underlying theory of FM?
1. Deter negligent killings: agency theory better b/c actors can’t be
deterred from his co-felon’s actions he cannot control
2. Deter all felonies: proximate cause theory better b/c it’s a stronger
deterrent from even embarking on the enterprise
(iv)Why killing of co-felon does not make D liable?
1. justifiable killing and law is designed to protect innocent
(v) NJ legislature later abandoned “agency theory”:
1. Adopt a proximate cause approach + exception precluding liability when
the victim is co-felon. State v. Martin.
(2) MPC: killing by co-felon during highly dangerous felony can make felons liable for
murder under “extreme reckless”, even if not relying on felony murder rule
9) #2 “Cause the death”:
a) Common requirements generally apply:
i) “But for” causation:
(1) But for the felony, the death would not have occurred
ii) Proximate causation:
(1) Result must have been natural and probable consequence of D’s action, or that it
must have been foreseeable
(a) The result must be fairly attributable to D’s action, rather than to mere
coincidence or to the intervening action of another
(b) The further you get away from the felony, the better chance you’re not liable

76
 (i) Common law: casual chain is broken a year and a day later
(2) ex. King v. Commonwealth: Ds transport marijuana in light plane and crushed into
mountain in mid of fog, causing death of his copilot. [Not liable]
(a) Court ruled “but for” is met (crash would not occur but for felony of transporting
marijuana), but not proximate cause (crash is not foreseeable result of felony
b/c it’s likely to happen even if they did not transport marijuana but other stuff)
b) Exception/wrinkle:
i) People v. Stamp (CA. 1969)[G]: eggshell rule
(1) Fact: D burglarized Honeyman’s tore and robbed him at gunpoint. D require him to
lie on the floor on 10 mins, until D fled. Honeyman shortly began suffering chest
pains, collapsed, and died of a heart attack (he’s an obese 60-year guy, with history
of heart disease, have work pressure and does not take good care of his heart)
(2) If the defendant shortens the life of another at all while committing a felony they are
guilty of murder
(a) As long as the death is the direct, causal result of the felony →Liable
(b) The death doesn’t have to be foreseeable; as long as the death is the direct
causal result of the robbery
(c) Meet normal causal standard (D did cause his death) but not normal culpable
standard (D wasn’t even negligent, but still convicted of murder)
(3) D was convicted as 1st degree murder in armed robbery and burglary
(a) Robbery is one of specified felony leading to 1st degree murder
(i) If no FMR not even negligence (b/c reasonable person would not foresee a
person will die from heart attack by lying on the floor for 10 mins)
(b) felony murder requires causation:
(i) D’s robbery is the direct cause of the death,
1. No intervening factors b/w robbery and death, although robbery is not
the only factor (weak condition of his heart also contribute to his death)
(ii) Felony murder rule is not limited to death which are foreseeable
1. Eggshell rule: “take your victim as you see him”
a. liable for the P's unforeseeable and uncommon reactions to the D's
negligent or intentional tort.
(iii)Require a mens rea less than negligence
(c) How to reconcile Stamp with common causation rules?
(i) Stamp can be seen as exception to foreseeability rule when victim has some
preexisting conditions (eggshell rule)
1. FM still has normal causation requirements, just w/ this special contour
(ii) OR can say pre-existing conditions of some victims (ex. P’s obesity 过度肥胖
here) are somewhat foreseeable
(iii)Causation
1. “but for” the felony, the death would not have occurred
2. The result must have been the natural and probable consequence of the
defendant’s action or must have been foreseeable.

77
 3. If the person dies much later (P.O. dying 3 months later after being hit by
getaway car example) you are still liable for their death UNLESS you can
prove some proximate cause issues as intervening causes
4. The further you get away from the felony, maybe the better chance you
have
5. Common law says that the victim had to die within a year and a day
ii) Hypo: If the person dies much later, ex. 3 months later after being hit by getaway car
D is still liable for his death UNLESS he can prove some intervening causes
(1) Result can come later if the killing has been caused now
(2) The further you get away from the felony, the better chance you’re not liable
(a) CL: must be within 1 year and a day to hold D liable
10) #3 “In the commission or attempted commission of felony”:
a) The killing must be done “during” the felony—how long does a felony last?
i) Felony = attempt starts end of “immediate flight” (felons have reached
place of seeming security, coming to rest)
(1) Courts are split on how long an “escape” may take
(a) ex. killing occurred days after the felony take place  not “during” felony
(b) ex. if killing occurred while felon existing the rob store ”during” felony
(c) ex. felon returned to his house, sit an hour and then hearing police come to the
front door, run through back store and kill a person  not “during” felony
(2) Court tend to extended “escape” period to cover the killing
(a) ex. robbers stopped fleeing at a safe house to split up the goods (evidence they
felt secure). But Strong lost because it was considered part of the escape plan.
11) #4 Inherently dangerous felony:
a) Regina v. Serne (1887)[NG, NG for arson →NG for murder]: “predicate felony must be
inherently dangerous to life”
i) Fact: D lived with his wife, 2 daughters, and 2 sons. D had financial issue insured all his
furniture, house, and life of one of his killed son. D set fire on his house in order to get
insurance money and shop (as the fire starts at several points near inflammable
materials), his 2 sons died from fire either near the window or in the basement. D, his
wife and 2 daughters were rescued from roof of house.
ii) Felony murder is applicable to acts generally known to be dangerous/cause death
during the commission of the felony (killing of another with intent to commit a felony)
(1) No predicate felony, no felony murder
(2) No requirement of indifference or awareness to risk
iii) D was charged with murder (no degree was created until Penn’s statute)
(1) But if there’s degree, arson is a specified felonies of 1st degree murder
iv) Two ways to convict D:
(1) Method 1: extreme reckless
(2) Method 2: felony murder –Limited FM to “act known to be dangerous to life and
likely in itself to cause death, in order to commit a felony which causes death”
(a) Focuse on predicate felony: which predicate felony is suitable for the use of
felony murder rule? –those that are inherently dangerous to life

78
 (i) Phillips and Hines give two ways to determine whether a felony is
inherently dangerous to life.
(b) Close to “extreme recklessness”:
(i) “Known to be dangerous” –awareness of risk
1. Subject/object?
(ii) “Likely in itself to cause death”—extremely high risk to life
(iii)No mention of extreme indifference to human life
(c) The best way to defend against a FM charge is to attack the idea that a
felony happened.
(i) Here, D got off because jury was not convinced that he committed arson. If D
did not commit the felony, then can’t be guilty of FM.
(ii) Show predicate felony is not suitable for FMR under limitations
(iii)Defeat the felony charge (if the predicate felony falls apart, FM does too)
1. ex. is there an arson in this case at all? (D could have set fire when he’s
not at home (but D may just want to make it look real), no mention of
whether 2nd son was insured)
b) People v. Philips (CA. 1966)[NG for 2ndM]: abstract test—minority
i) Fact: parents take 8-year-old child to D (eye doctor) to treat a fast-growing eye cancer;
D recommends alternative cure designed to build up her resistance, instead of lifesaving
surgery. D charged the parents $700 for treatment. The child dies in 6 months
ii) D was charged with 2nd degree murder in grand theft medical fraud
(1) Grand theft = theft by deception
iii) Court reversed the conviction, b/c
(1) Felony murder rule is limited to felonies inherently dangerous to life, but grand
theft is not a felony that’s inherently dangerous (can be committed w/o violence, ex.
Lie to get money)
(2) Abstract test: minority
(a) The elements of the felony in the abstract, not as committed (put the facts
aside), determine the inherent dangerousness of the felony
(i) Start with the statute and elements of the felony, then ask can the felony
ordinarily be committed in ways (w/ being too imaginative) that are not
dangerous to life?
1. look at the elements in the abstract way, not the manner of commission.
a. Check felony murder rule doctrine
i. “by surprise, expresses a highly artificial concept that deserves
no extension beyond its required application. we're not going to
go further than we have to.”
2. But if too imaginative (ex. you have to think of a way to make felony not
dangerous to life), the felony is treated as inherently dangerous
3. Here, theft include pickpocket theft that’s not dangerous to life at all, so
theft is not in the abstract inherently dangerous
(ii) “Inherently dangerous felony”: felonies carrying a high probability of risk to
death (Patterson)
1. Close to extreme recklessness

79
 1. ex: arson, rape, kidnapping, burglary, and things that involve direct
contact with individuals
a. Parallels specified felonies for 1st degree murder (which are meant
to be suitable predicate felonies by the legislature)
(b) Rationale:
(i) Deference to legislative definition of felonies
(ii) Prevent limitless expansion of felony terminologies by contextual elements
(iii)Basic hostility to the felony murder rule itself
(c) Comments:
(i) Greatly narrow applications of felony murder rule
1. Narrow it too much: could cut out too many felonies
(ii) Consistency of FM and notice to defendants
(3) Other felonies under the abstract test:
(a) Larceny:
(i) Not inherently dangerous, b/c no weapons or people need even be involved
(b) false imprisonment 非法监禁 by violence, menace 威胁, fraud or deceit. People
v. Henderson
(i) No inherently dangerous, b/c “fraud” and “deceit” are not viewed as
dangerous for life (though violence/menace is likely dangerous to life)
(c) felonious unlicensed practice of medicine: “treating the sick without a valid
license under circumstance which cause or create a risk of great bodily harm,
serious physical or mental illness or death. People v. Burroughs:
(i) Not inherently dangerous, b/c mental illness is not dangerous to life
1. only one non-dangerous element is needed, but can’t think too hard to
imagine such an element
(d) Rape, Kidnapping, Burglary
(i) inherently dangerous.
(ii) But these are also usually considered “specialized felonies” for 1st degree
murder
1. Arson, Rape, Mayhem 故意伤害, Robbery. Burglary 入室盗窃. Lewd or
lascivious acts upon the body of a child 猥亵儿童
c) Hines v. State (GA. 2003)[G]: as committed test—majority
i) Fact: D and friend went hunting with shotgun, divided into two groups (his son in the
other group 1/4 mile away). As the sky was growing dark, D head a turkey gobble, saw
it fun and shot, hitting his friend about 80 feet away. His friend died quickly.
ii) Predicate felony: possession of a firearm by convicted felon
iii) Court ruled felony murder:
(1) Felony is inherently dangerous when:
(a) Dangerous per se
(b) OR by its circumstance create foreseeable risk of death
(2) “As committed” test: majority approach
(a) Focus on specific factual circumstance of each case to determine whether the
felony is inherently dangerous

80
 (i) Stark departure from the abstract test in Phillips (which is more objective)
(b) The manner of commission greatly matters
(i) Here, D was drunk all the way, shot in the dust, knew other hunters are in
the area and was unaware of their exact locationD’s possession of firearm
is inherently dangerous
1. Prosecution may prove extreme reckless based on the facts, but chose
felony murder rule b/c easier to convict muder with FM
(c) Only need foreseeable risk of death to be “inherently dangerous”
(i) Dissent: prefers high probability of risk of death (of CA) as standard of
inherently dangerous felonies
1. Argues D was only negligent based on the facts, but not creating high
probability that death will result /life-threatening state of mind
(d) Who decide?
(i) In Hines, the judge decides whether the felony at issue is inherently
dangerous based on facts take power from jury to decide factual issue
(ii) Some courts leave the question to jury
1. But then isn’t felony murder rule practically same as extreme reckless?
a. People v. Stewart (R.I 1995): mother let her baby die of dehydration
by stopping feeding the baby for 2-3 days. Prosecution sued for
murder in felonious child neglect, instead of extreme reckless
d) People v. Satchel? Cali case
i) Not an inherently dangerous felony using the Phillips approach, But Heinz give us gives
us an alternative approach. what is that alternative approach?
(1) Consider the manner/ circumstances
(2) Foreseeable risk of death
12) #5 Does not merge:
a) Predicate felony has independent felonious purpose & not integral part of the homicide
i) ex. manslaughter and felonies assaults are not predicate felony for FMR
b) Enumerated/specified felonies can NEVER merge---Will always be a suitable predicate
felony
i) ADW→Merges; Armed Robbery→Doesn’t merge, purpose is to steal; Rape→Doesn’t
merge; Kidnapping→Doesn’t merge; Burglary→Could depend (to steal not merge, to
assault will merge)
ii) If the act merges→Not suitable predicate felony→No felony murder; If the act doesn’t
merge→Suitable predicate felony→Felony murder
c) Most states admit “merger doctrine—policy?
i) To preserve the grading structure of homicide carefully legislature desired
(1) If felonious assault is suitable felony, manslaughter will be by-passed, ex. every
felonious assault that results in death automatically become murder
d) People v. Burton (CA. 1971): merger doctrine
i) Fact: D killed a person in the course of committing an armed robbery; charged 1st
degree felony murder
ii) Court:

81
 (1) An offense undertaken for a felonious purpose independent of homicide can be the
underlying felony for felony murder.
(2) FMR: imputes malice aforethought if someone’s killed as a result of D’s
commission/attempted commission of a felony that’s inherently dangerous to
human life.
(a) To deter felons from killing by making them strictly liable for deaths that result
from their conduct.
(i) This purpose outweighs the normal legislative policy of examine the
individual syaye of mind of each person causing an unlawful killing
(3) California Penal Code: “foe certain felonies, malice aforethought will be imputed to D
for any resulting homicide, and it will be classified as first-degree murder.”
iii) Predicate felony: armed robberyis it a suitable predicate felony?
(1) Rejects People v. Ireland: “assault with deadly weapon” is a suitable predicate felony
(a) only has singular purpose to assault (no independent felonious purpose)
should merge with homicide  not suitable felony
(b) raises the concern: all intentional killings with deadly weapon will bypass
manslaughter to be murder, since all such killings include in fact assault w/ DW.
(2) Is it inherently dangerous to life? Yes (both under Hines & Phillips)
(3) Merge?
(a) Court says a felony merges if the purpose of the conduct is the very thing that
led to the death. Where there is an independent felonious purpose, it does not
merge.
(b) Armed robbery does not merge  suitable predicate felony, b/c
(i) armed robbery = larceny + assault with deadly weapon = independent
felonious purpose (purpose to steal money) + assault purpose
(4) Burton’s merger doctrine:
(a) If the single purpose is to commit very assault that produce the death merge
with homicide NOT suitable predicate felony
(i) ex. assault w/ deadly weapon (a single purpose to assault/inflict harm)
Ireland
(ii) ex. burglary with intent to commit assault w/ deadly weapon Wilson,
overruled by Farley
(b) If there’s independent felonious purpose different from purpose to commit very
assault that produce the death  NOT merge with homicide  suitable
predicate felony
(i) ex. armed robbery (steal+ assault); rape (sex + assault); kidnapping (ransom
俘虏/leverage/domination + assault), burglary with intent to steal (steal +
assault) Burton
(ii) Most courts ruled enumerated felonies specified in FM statutes are suitable
predicate felonies regardless of the merger doctrine
1. ex. rape, kidnapping, arson, burglary, robbery
2. deference to legislature & avoid creating anomaly in Wilson
e) Merger
i) Test

82
 (1) Whether the felony is “included in fact” in the homicide
(2) Whether the felony is “independent” of the homicide
f) People v. Wilson: court ruled “burglary with intent to commit assault with a deadly weapon
(ADW)” merges, b/c what matters is the single purpose to commit felonies assault, no
whether it’s committed inside or outside home
i) Wilson made room for competing independent felonious purposes
(1) “Burglary with intent to commit ADW” will merge, but “burglary with other intents
(ex. to steal)” may not merge
(2) Burglary = break in with intent to commit “felony” inside
ii) Overruled by People v. Farley: “burglary and other enumerated felonies would never
merge. legislature has exclusive power to define crimes”
(1) Most legislatures follow Farley’s “enumerated felony” approach
(2) Shows the anomaly created by Wilson: D, obsessed with A, enter her workplace and
firing automatic weapon, killed 7 and injured 4 including A.
(a) If sole intent is to assault only A 7 counts of felony murder
(b) If intent to assault all 11 workers no counts of felony murder (may raise
mitigating mens rea defense)
(3) Solve Wilson’s anomaly not by permitting merger in both situations, but by arguing
it’s enumerated felony new anomaly?
g) Anomaly of non-enumerated felony:
i) People v. Robertson: D defense he did not intend to kill, just to frighten away thieves;
court ruled there’s independent purpose to prevent merger and apply felony murder
(1) Raise the concern: accidental killing (involuntary manslaughter) can become
murder just because D denied having an intent to kill
13) Misdemeanor-manslaughter rule:
a) A misdemeanor resulting in death can provide a basis for an involuntary manslaughter
conviction without proof of reckless or negligence
i) Most states do not recognize this rule (only CA and a few states do)
ii) 3 kinds of limitations: proximate cause, malum prohibitum (regulatory offense),
criminal negligence (dangerousness)
14) Hypo:
a) D robs an old man at gunpoint, runs from scene with wallet, unbeknownst to D there was an
undercover cop watching that chases him. D gets into getaway car, looks before backing up,
accidentally strikes police officer who sneak behind car and kills him.
i) Predicate Felony: armed robbery
(1) Inherently dangerous
(2) does not merge (Burton: independent purpose to steal)
(3) in the furtherance of felony?
(a) Need to decide when the felony starts and ends from attempt to the end of
“immediate flight” (reach a place of seeming security)
(b) Any action considered necessary to commit the crime is part of the felony.
(i) Felony start: attempt to commit
(ii) Felony end: immediate flight ends, and felon has “seeming security”

83
 b) If there’s no felony murder rule need to decide mens rea for homicide
i) if criminally negligent, maybe involuntary manslaughter,
ii) if not - no charge
c) D sit in passenger seat and his accomplice was driving and hit and killed a person
i) Besides the analysis in a),
ii) Did the death occur by the defendant or an accomplice? Yes.
(1) FM applies to you or an accomplice.
(2) D is liable for his accomplice’s killing
d) While trying to stop Ds from fleeing, police officer misses the target (tire of their car) and
kills an innocent old woman who’s passing by
i) Did the death occur in the furtherance of the felony by you or an accomplice? Depends.
(1) Agency theory: D is not liable b/c police is not his agent, not liable for non-felons
(2) Proximate cause: D is liable b/ police’s action can be foreseen and within risk. Death
is a foreseeable risk of armed robbery. Maybe not death in this specific way, but
generally death is in the range of risk.
e) D give a counterfeit 赝品$100 to old guy who freak out & heart attack & died after found
out:
i) Does F-M apply? No, because not suitable predicate felony.
(1) Predicate charge: Larceny by false pretenses
(a) Is it a suitable predicate felony? No.
(i) Is it inherently dangerous to life? No. A crime involving fraud is usually not.
(even in the abstract)
(ii) Does is merge? No, because independent felonious purpose.
f) If D had punched old man in ribs to get him out of his way & it messed up old man’s
pacemaker and he died
i) Does F-M apply? No, because this merges.
(1) Predicate charge: Assault.
(a) Is this felonious assault? Probably.
(2) Is it a suitable predicate felony? No.
(a) Is it inherently dangerous to life? Yes.
(b) Does is merge? Yes.
(i) Does it have an independent felonious purpose? No. D had the intent to
assault, and the assault was the very thing that led to death.
ii) Merger: a single purpose to commit the assault that caused the death
iii) You take the victim as you find them (fixes the causation issue)

84
MPC Approach of Criminal Homicide

1) MPC 210.1 A person is guilty of criminal homicide if he purposely, knowingly, recklessly or

negligently causes the death of another human being
a) Criminal homicide is murder, manslaughter, and negligent homicide
2) MPC 210.2 Murder
a) Except for 210.3(1)(b)’s EMED, criminal homicide is murder when committed
i) purposely /knowingly (P/K)
ii) OR recklessly with extreme indifference 漠视 to the value of human life (REI). REI is
presumed if the actor is engaging in or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to commit robbery, rape or
deviate sexual intercourse by force or threat, arson, burglary, kidnapping, or felonious
escape
iii) Murder is a felony of the first degree [but a person convicted of murder may be
sentenced to death, as provided in § 210.6]
3) MPC 210.3 Manslaughter
a) Criminal homicide constitute manslaughter when it’s committed:
i) Recklessly (R)
ii) OR the murder is committed under influence of extreme mental or emotional
disturbance, for which there is reasonable explanation or excuse (EMED)
(1) reasonableness shall be determined from the viewpoint of a person in the actor's
situation under the circumstances as he believes them to be.
b) Manslaughter is a felony of the second degree
4) MPC 210.4 Negligent Homicide
a) Criminal homicide constitute manslaughter when it’s committed:
i) Negligently (N)
(1) must be criminal negligence that require a gross deviation 偏离

85
 b) Negligent homicide is a felony of the third degree

86
 Attempt
1) Elements:
a) Mens rea: Intent to commit the target offense
b) Actus rea: An act beyond mere preparation toward commission of target offense
2) Broaden the reach of criminal law to where target offense can’t reach
3) History:
a) Attempt in specific offense, ex assault, burglary
b) General law attempt
i) US is one of countries with general law attempt, parallel the first police office in Boston
4) Policy:
a) MPC punish attempts equally as complete crimes, unless for most serous punishments (life
imprisonment/death penalty)—minority view
i) Punishment should be proportional to culpability
ii) Equally culpable means equally dangerous
iii) Allow for earlier police intervention
iv) Moral perspective: if the punishment for attempt is the same as successful commission
the deterrence for committing the crime goes down (might as well commit & not turn
back)
b) CL: Most states reduce punishment to half for attempts—majority view
i) Retributionist: people may change mind before committing crime; less to retribute
when consequence is less great; negative community sentiment on punishing people
equally when one of them did not cause harm. the criminal may not be as guilty because
of remorse 懊悔 & may have room for a change of heart
ii) Utilitarian: lighter punishment than targe offense (don’t want to incentivize people to
complete the crime); less need for remedy when no harm is actually caused
iii) Punishment should be proportional to harm
iv) Less certain basis to infer culpability when no consequence occurs
v) Threat perspective: if an attempt did not exist then punishment would only exist in the
inner zone of the “target offense” when the crime was successfully committed & the
threat accomplished
(1) 采用不同的标准，可以鼓励人们中止犯罪，要不然杀不杀人都是一个结果。
vi) Why punishment: In culpability you can justify that it is more intentional & equivalent
culpability/equally as dangerous
(1) In culpability, Having an attempt charge gives people opportunity for a change of
heart/Incentivized people to not go through with the crime in full/ When an act
hasn’t been completed, there may be less evidence on culpability.
(2) In harm, Attempt of a crime results in less harm than completion of a crime, so
punishing based on attempt is more proportional to the harm created.
5) Concept:
a) Inchoate crime: an imperfect or incomplete crime
b) Locus penitae 犯罪中止？: zone where defendant could still repent and won’t go through
with the crime
c) Impossible attempt: the target attempt cannot and will not occur
6) MPC §5.01(1)

87
 a) “Except as otherwise provided in this Section, attempt, solicitation and conspiracy are
crimes of the same grade and degree as the most serious offense which is attempted or
solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit a
[capital crime or a] felony of the first degree [for example, murder and aggravated offenses
of kidnapping, rape, and robbery] is a felony of the second degree. [Under §6.06, a felony of
the first degree is punishable by imprisonment for a term whose minimum is between one
and ten years and whose maximum is life. A felony of the second degree is punishable by
imprisonment for a term whose minimum is between one and three years and whose
maximum is ten years.]”
7) MPC §5.01(1)(b): The required mens rea is satisfied if the defendant acts “with the purpose of
causing or with the belief that [his conduct] will cause” the prohibited result.
8) Common law attempts were assault, burglary (to batter, to steal), etc.

Attempt Target Offense

AR MR AR MR
Act beyond the mere Purpose to engage in conduct of target offense Conduct MR
preparation toward the
commission of the target Match circumstance MR of target offense Circ. MR
offense * if T.O. has no circ. MR, then attempt has strict liability w/r/t
result
1. Proximity Test
Purpose to produce the result of the target Result MR
2. Equivocality Test
offense
3. Substantial Step Test
+ any free-floating MR

We require more in terms of the mens rea because there’s less available in form of the actus reus

Mens rea—intent to commit target offense

1) = intent to commit a target offense:

2) Result  purpose
a) Smallwood v. State (Maryland, 1996)[NG]: HIV rapist
i) Fact: D knew he’s HIV positive and been warned by social worker of need to practice
“safe sex.” But D still committed 3 rapes and did not use condom in any of attacks.
ii) Specific intent or purpose is required with respect to the result
iii) Target offense: murder(target offense of attempted murder) and rape
iv) Court ruled NOT attempted murder, b/c no sufficient evidence of intent to kill

88
 (1) Murder: MR for result element = malice aforethought = intent to kill, intent to GBH,
extreme reckless, felony murder)
(a) Element analysis: don’t have required MR with regards to the result. (D must
have had the purpose to produce death) --- Court ruled only a showing of D
expose victims to risk they might contract HIV, but no evidence the result is
sufficiently probable to infer intent to kill
(i) HIV-positive individual who commits a sex crime doesn’t automatically
demonstrate an intent to kill merely because of the knowing exposure.
(ii) Distinguish from deadly weapon rule
1. Magnitude of risk the victim knowingly exposed is not as high as DWR
2. State failed to provide evidence that death by ADIs is a probable result of
D’s action to the same extent that death is probable result of firing
deadly weapon at vital art of human body
3. Permissive 宽容 inference: the intentional use of a deadly weapon
against a vital part of human body faces this permissive inference
intended to kill when the facts the rest of the facts of the case don't
indicate that and there's no reason to take that permissive inference.
(iii)No additional evidence to infer intent to kill(rape →HIV→AIDS→Death)
1. D’s acts are wholly explained by intent to commit rape/armed robbery
2. Intent can be inferred from circumstantial evidence:
acts/conduct/words
a. Possible additional evidence: ex. explicit statement showing intent
to infect victims/ acted in a way show the plan to harm the victim
through exposure → intent to kill inferred
i. State v. Hinkerhouse: D lied to victim he doesn’t have HIVs and
told one of sexual partners “if he were HIV-positive, he would
spread the virus to others” sufficient evidence of intent to kill
ii. State v. Caine: D jabbed a used springe into victim’s arm while
shouting “I’ll give you AIDs”
(b) Attempt requires purpose for “result” element, even when the target offense
only requires some lessor mens rea (ex. murder by extreme reckless)
(i) Nearly all states use this approach
(ii) Some state like Colorado accepts knowledge/reckless for MR of attempt
(2) if one of the rape victims died of AIDs within a year and a day
(a) Felony murder? Yes,
(i) Predicate felony: rape
1. suitable predicate felony (inherently dangers, not merge – purpose is to
rape), and in furtherance of felony
2. killing occur in commission of rape and cause the person’s death (result
can come later on)
(3) if one of the rape victims had died

89
 (a) Extreme reckless? No, Extreme recklessness requires an “extremely high level of
unjustified risk,” subjective awareness of some risk, but no evidence shown to
prove how likely HIVs will cause AIDs that causes death
v) Hypo: 3/2 40
(1) A, drove car at Bill, intending to kill him,
B, drove car at Bill, intending to inflict grievous bodily harm (break his legs)(want
him live & suffer), and accidentally kills him.
C, extremely reckless, drive car through crowd, incidentally hit Bill,
D, drives a getaway car as part of a felony/ drove getaways car in bank robbery,
accidentally hit Bill
If Bill dies, who is guilty of what? All are guilty of murder.
If Bill doesn’t die, who is guilty of what?
(a) A is guilty of attempted murder because A had purpose with respect to the
result of B’s death.
(b) B, C, and D cannot be guilty of attempted murder because none of them acted
with purpose to produce B’s death. They had malice aforethought, but not
purpose to produce death, which is required for attempted murder.
Murder Attempt to murder

A √ √

B √ X

C √ X

D √ X

(2) Pilot knows plane faulty and could crash. Takes 6 paying passengers hoping for the
best. The plane crashes.
(a) If everyone dies, P could be guilty of murder because of extreme recklessness.
(involuntary manslaughter? Double check)
(b) If no one died, P cannot be guilty of attempted murder because there was no
purpose to produce death.
b) Why attempt requires “special intent/purpose”, when target offense may require
much lower? (Higher MR for attempted murder than muder)
i) “Every attempt requires specific intent to commit the target crime even if the
completed crime does not require specific intent.” People v. Beck
ii) To offset/balance out lower actus rea for attempt (does not require completion of
crime), otherwise too many people will be guilty of attempt b/c reckless or negligent
behavior. (AR-attempted murder (an act beyond the mere preparation in the
commission of a crime) is lower than AR-murder (killing) )
(1) ex. D was driving up steep hill and big truck in front of you driving slowly. D cross
the line, without seeing other side hill, and drive over the truck.
(a) If attempt does not require “purpose”, but only reckless, then D has committed
attempted involuntary manslaughter(MR negligence) even if no harm results
(b) There cannot be an intent to produce an unintentional outcome
(purpose/negligence clash)
(c) Additionally, many jurisdictions are reluctant to apply attempt to many attempt-
like claims (assault/burglary)

90
 iii) Linguistic: attempt something is to try to accomplish it, one can’t be said to try if one
does not intend to succeed
iv) Moral: one who intends to commit criminal harm does a greater moral wrong than one
who dos so recklessly or negligently
v) Utilitarian: importance of intent is not to show the act was wicked, but that it was likely
to be followed by hurtful consequence
c) Attempted manslaughter?
i) No crime of attempted involuntary manslaughter
(1) Contradiction in terms: attempt require proof of intent to kill, but essence of
involuntary manslaughter is unintentional killing (lack of intent to kill)
ii) But there’s attempted voluntary manslaughter
(1) voluntary manslaughter = intent to kill + provocation formula has intent to kill
d) Attempted felony murder?
i) Most states: no attempted felony murder, except Arkansas. Florida has, but through
statutes, not court decisions.
ii) Hypo: 2 Ds fire at a guard when escape from bank robbery, a felony. Guard is wounded
but survives. Ds intended to frighten, not to kill
e) Hypo:
i) Jones v. State: D shot at house full of people, wounding several and killing one
(1) Murder on the person killed, b/c extreme reckless can satisfy murder
(2) Not attempted murder of those he wounded, b/c attempt requires intent to kill
ii) Thacker v. Commonwealth: D is drunk and angered by woman’s refusal, shot at the
light shing through the canvas, but the bullet missed the woman.
(1) If the woman dies murder by extreme reckless
(2) Not attempted murder, b/c no intent to kill (only extreme reckless)
(a) But may be reckless endangerment (MPC)
3) Transferred intent?
4) Circumstance  match the MR required for AC in the target offense
a) A lower bar than MPC approach
b) Hypo: D sneaks up on an undercover federal P.O. with a weapon intending to hit him in the
back of the head. Another P.O. stops you just before you do. Charged with attempted assault
of a federal cop and it is strict liability for identify of federal officer
i) Attempt? –MR for “federal officer” = MR required by target offense = strict liability
c) Commonwealth v. Dunne: age element in attempted statutory rape.
i) Strict liability match target offense’s MR
d) Regina v. Khan: consent element in attempted rape
i) Knowledge or reckless match target offense’s MR
5) Conduct  purpose
a) Usually, no issues around mens rea for “conduct” element
b) MPC also applies this approach
6) MPC Approach:
a) = common law requirements of mens rea MPC 5.01
i) Conduct  purpose

91
 ii) Result purpose or belief/knowledge
iii) Attendant circumstance ”culpability otherwise required by the crime”

Actus rea—beyond mere preparation

1) Policy:
a) Can’t too early: Preserve locus penitentiae ---, we want a later point so criminals can have a
change of heart;/ Concern on culpability
b) Can’t too late: space for early police intervention, we want the zone of attempt to be larger
(point earlier) to promote public safety/ Concern of precursor activities / stop threat
earlier, Dangerousness of the threat of future attempts
2) How to draw the line b/w mere preparation and zone of attempt?
a) Dangerous proximity test --oldest, most traditional, #2 majority
b) Equivocality test---least applied
c) Substantial step test---(MPC) 1244 §5.01, #1 most popularity?
3) Proximity vs. Equivocality vs. Substantial Step
Danger Culpability
Proximity Heavy Light 1. The act must come “very near”/
test (oldest, (Have to wait till (Rizzo was culpable, but “dangerously near” the
traditional) danger is high enough b/c not near the target, accomplishment of the target
#2 majority to intervene Rizzo) so we can’t intervene) crime, so near that in all
reasonable probability the crime
itself would have been
accomplished, but for timely
interference;
3. focus on danger, must be a
“dangerous proximity to success.”
2. Point is very close to the target
offense (Focus on what has been
done & gap between acts and
target offense)
Equivocality Light Heavy Act must show criminal intent on
test (Only look to actions (Culpability is so the face of it, without considering
(Least used) manifesting intent, important that it other evidence of intent (ex.
which must be requires objective statements and words); the
unambiguous until evidence: only an criminal purpose must be
you can intervene, unequivocally culpable manifested by acts which are
even if danger can action suffices, verbally sufficient in themselves to declare
become really high. declared intent is the guilty purpose. King v. Barker
Miller) ignored. Miller) 2. Focus on culpability, act
3. (Focuses on what still has to be
done)
Substantial Middle D must engage in an act or
step (attempts to draw equally on danger and omission which constitute a

92
(#1majority) culpability) substantial step in the course of
---(MPC) conduct planned to culminate in
1244 §5.01 the commission of crime, that is
strongly corroborative of the
firmness of D’s criminal intent.
Jackson
2.Focused on both culpability &
danger equally
3. (Focuses on what has been
done)

4) Proximity test:
a) Once the person is in the zone of attempt they are guilty-doesn’t matter if they repent
/change of heart
i) Added a defense for this to reward those that change their mind; only works for early
intervention when actor has had no interference with police
b) People v. Rizzo (NY. 1927)[NG]: ever-searching robber (NOT attempted crime)
i) Fact: D and 3 others planned to rob Rao w/ payroll $1200, two of them had firearms,
started out in car, looking for the person around near banks, streets and finally arrested
after D jumped out car and went into one building. They never found Rao and Rao was
not in the final building they’re arrested
ii) The acts of the defendant must be in dangerous proximity of the crime itself
(1) “An act so near the crime’s accomplishment that it would’ve been committed
without timely interference” --- D never found Rao→never dangerously near
iii) Charge: attempted robbery
iv) Court ruled actus rea NOT satisfied
(1) Intent to commit robbery (mens rea)? Clearly yes
(a) No change of heart (if yes, not until they found they’re watched by police)
(2) But mere preparation, not attempt (actus rea):
(a) Attempt= action in furtherance of criminal intent + sufficient proximity to the
completed offense, as opposed to being remote from it.
(i) Proximity →act must be dangerously near the intended crime’s
accomplishment.
(b) Dangerous proximity test: “the act must come “very near” or “dangerously
near” the accomplishment of the target crime, so near that in all reasonable

93
 probability the crime would have been accomplished but for timely interference.
There must be a dangerous proximity to success”
(i) key is the geographical distance to target place/person
(ii) Look to the actions left to be taken
1. Cf substantial step test: look to steps already taken
(iii) “The distance b/w D’s actions and the unachieved goal of the consummated
crime must be relatively short, and the gap narrow” People v. Bell
(iv)Counting back from the target offense
(c) Here, Rizzo never found the potential victim (still looking for victim). Action
were remote from the completed crime. No attempt to rob him could be made, at
least until he come into sight
(i) = D never reached the presence of the victim factual touchstone of
applying proximity test
v) Attention: different than today
(1) MPC: D took a substantial step towards committing the completed offense →
attempt conviction
vi) Hypo: try to rob the bank, with toy gun in my pocket
(1) Toy gun: less likely with intent to kill
c) Commonwealth v. Peasley: abandoned arson
i) D arranges combustibles in a building, ready to be lighted to burn down building(target
crime-arson). D paid another person to light the candles. D and other person drove
toward the building, but then change mind ¼ mile away and drive away
(1) Holmes said this wasn’t dangerously near even though there were indications of
intent/dangerous steps taken
(2) Proximity test:
(a) D is still 1/4 miles away from the building not dangerously close
(b) Offering to pay the kid?
(i) No, prosecution did not allege solicitation as a separate offense
(c) But if he crossed the point of dangerous proximity, then he’s guilty, no matter
whether there has been a change of heart or not
d) Drawbacks of proximity test:
i) Actor may change his mind after being dangerously close to the commission
(1) Solution: renunciation/abandonment defense MPC 5.01(4)
(a) It’s affirmative defense that he abandons his effort to commit the crime OR
otherwise prevented its commission, under circumstances manifesting a
complete and voluntary renunciation of his criminal purpose
(i) Not voluntary if motivated in whole or part by circumstance, not present or
apparent at the inception of actor’s course of conduct, which
1. increase the probability of detection 发现 or apprehension 逮捕
a. ex. victim fighting back; police being present; afraid of be caught
2. OR make more difficult the accomplishment of the criminal purpose
(only works for indications of purity of heart)
(ii) Not complete if motivated by decision
1. to postpone a criminal conduct until a more advantageous time

94
 2. OR to transfer the criminal effort to anther but similar objective or
victim
(b) The defense does NOT apply to accomplice who did not join in such
abandonment or prevention
ii) Prevent opportunity of early police interventions
(1) Solution: equivocality test
5) Equivocality test
a) Act must show criminal intent on the face of it, without considering other evidence of intent
(ex. statements and words); the criminal purpose must be manifested by acts which are
sufficient in themselves to declare the guilty purpose. King v. Barker:
i) Not an act in themselves of innocent or ambiguous significance
ii) Not consider actor’s statements or words (or any expression, declaration, or confession
of his criminal intention)
(1) Policy: law doesn’t punish people for mere thoughts
iii) Doesn’t have to have the last step
iv) Define actus rea partly based on mens rea
v) Can’t argument making the statement itself is an act, cant use statement
b) King v. Barker (1924, p. 652) – Haystack Hypo
i) Fact: D buys a pack of matches, takes it to a giant haystack at a barn, and lights the
match right by the haystack. A police officer is watching D, and D notices someone is
watching him. As soon as D notices, D blows out the candle.
(1) Here, under the equivocality test, it seems like D’s actions are unequivocal. But D
could still argue that there are alternative, non-criminal explanations to his
behavior.
(2) This is why jurisdictions are reluctant to adopt the equivocality test in it its full
form.
c) People v. Miller (CA. 1935)[NG]: loaded but not lifted
i) Fact: D had threatened to kill Jeans, entered a field where Jeans and the local constable
were planting hops. D was carrying a rifle and walked straight toward them. D stopped
once to load his rifle but never lift to take aim. Jeans fled and the constable disarmed D.
ii) Charge: attempted murder
iii) Court ruled no liability: D’s acts were equivocal (ambiguous, open to interpretation)
(1) No one could say with certainty that D came to the field to carry out his threat to kill
Jeans, even if he has expressed intention to kill in the public
(a) Disregards D’s declared intention to kill Jeans
(b) Looking for unequivocal indication of criminal intent: the act must unambiguous
—"so long as the equivocal quality remains, no one can say with certainty what
the intent is”
(i) Doesn’t matter that D threatened Jean verbally. Only looking at the action of
loading the gun, can we infer intent to kill?
1. Maybe he only intended to intimidate
2. Maybe confused the cop with a trespasser
3. D has not lifted the gun or aim at Jeans (will be convicted if otherwise)

95
 4. Constable is present, unlikely to kill with police present
(c) Problem: there’s always some ambiguity (other explanations) of an act
(i) Example:
1. “Buy a box of matches with intent to use them in burning a haystack”
equivocal, can have other reason than arson
a. The act of buying matches with the intent to burn a hay stack doesn’t
equivocate the intent of arson
i. Equivocality test doesn’t’ pass & proximity test says its still in
preparation
2. “Take matches to a haystack, lights one of them, and blows it out on
finding that he’s observed” not equivocal anymore
a. But can argue Maybe he was thinking of committing arson but then
had a change of heart/he only try to avoid his wife to find he’s
lighting a cigarette and smoking
(ii) That’s why most states do not use this test, though still has residual
importance as example for design of future test
(d) No abandonment defense, b/c not voluntary (unarmed by the police)
6) Substantial step test
a) The act must constitute a substantial step toward the commission of the crime that is
strongly corroborative of the firmness of the defendant’s criminal intent
i) Examples of Substantial steps: (1) lying in wait 埋伏, (2)enticing 引诱 victim to come to
place of commission, (3) reconnaissance 侦查 of commission of crime, (4)unlawful
entry of structure/enclosure in which crime will be committed, (5)possession of
materials for crime, possession of materials that serve no lawful use under the
circumstance, (6)soliciting innocent agent to aid in crime
ii) Focuses on what the actor has already done
b) United States v. Jackson (US. 1977)[G]: rescheduled robbery
i) Fact: On the 14th, a group of guys agreed to rob bank. They drove to the bank with
sawed-off shotgun, shells, mask materials, and handcuffs, checked surveillance, installed
false license on the car, entered the bank but change their mind b/c too many patrons.
They rescheduled for the 21st. but one was arrested and sold them to the police. On the
21st, police wait for them, their car drove near to bank, with missing license plate,
detected the presence of police and get arrested. Police found a suitcase with shotguns,
revolver, handcuffs, and masks in the car.
ii) Charge: conspiracy of armed robbery + attempted robbery
(1) Proximity test:
(a) Dangerously close? Maybe Yes
(i) One of them walked into the bank physically close enough or not
(b) No abandonment defenses
(i) On the 14th: not voluntary (deterred by large number of patrons - higher
risk to get caught) and not complete (postpone to another day)
(ii) On the 21st: not voluntary (prevented by detection of FBI surveillance)
(2) Equivocality test

96
 (a) Only consider their actions (switching license plates, putting guns in the car),
not any declared intent (by the betraying one?) still equivocal about intent
(i) Many other plausible explanations, especially for change of license plate
iii) Court ruled sufficient evidence for attempted robbery on both 14th and 21st
(1) Substantial step test:
(a) D must have been acting with the kind of culpability otherwise required (circ.
element) for the commission of the crime.
(b) D must have engaged in act or omission which constitute a substantial step
toward the commission of the crime – one which is strongly corroborative 证实
of the firmness of the D’s criminal intent.
(c) = MPC 5.01 Substantial step test consideration: the following list is each
sufficient for “substantial step” IF strongly corroborative of criminal purpose
[under the circumstance]:
1. Lying in wait, searching for or following the contemplated victim
2. Enticing or seeking to entice the contemplated victim of the crime to go
to the place contemplated for its commission
3. Reconnoitering the place contemplated for the commission of the crime
4. Unlawful entry of a structure, vehicle or enclosure in which it is
contemplated that the crime will be committed
5. Possession of materials to be employed in the commission of the crime,
which are specially designed for such unlawful use or which can serve
no lawful purpose of the actor under the circumstances;
6. Possession, collection or fabrication of materials to be employed in the
commission of the crime, at or near the place contemplated for its
commission, where such possession, collection or fabrication serves no
lawful purpose of the actor under the circumstances;
7. Soliciting an innocent agent to engage in conduct constituting an
element of the crime.
(d) “Strongly corroborative of criminal purpose”
(i) look at the entire universe of actions taken, don’t have to prove one action is
strongly corroborative
(e) Focus on what actor has already done (NOT what remained to be done)
(f) Broaden the proximity test b/c does not require the last proximate act
(g) Draw element from equivocality test—look to acts strongly corroborative of
criminal purpose
(i) But less of a hurdle for prosecution—act only need to be strongly
corroborative of criminal purpose, not have to be unequivocal
(2) Here, evidence is sufficient to establish “substantial step”
(a) Reconnoiter the place contemplated for the commission of the crime
(b) Possession of paraphernalia (loaded sawed-off shotgun, extra shells, toy
revolver, handcuffs, and masks) specially designed for such unlawful use and
can serve no lawful purpose under the circumstance

97
 (c) Both types of conduct coincide on the 14th and the 21st, along with other
elements, thus strongly corroborative of firmness of criminal purpose
(3) Most common variation on MPC:
(a) Wiping out the enumerated list of examples.
(b) Makes “strongly corroborative” a bit more difficult to establish
(4) Omission—can a substantial step be an omission as in MPC 5.01(1)(c)?
(a) Ex. nursing home attendant who has duty to care for elderly patient did not
bring his medicine b/c want to see him dead. A few hours later, another
attendant discover the patient in distress but manages to rectify the situation
(5) Renunciation/abandonment defense would not work because postponed & left on
21st because suspected cops
(6) Cannot use the material found on the 21st because didn’t find this until they were
arrested-can count it as part of their intent
c) McQuirter v. State (Ala. 1953)[G]: “black” follows “white” (Race could be considered by the jury)
i) Fact: white girl testified “following her and kids to friend’s home, say things
unintelligible, as close as 3 feet away”. D was black and denied he was following her.
Police testified that D confess his intent to rape girl in the jail. All of this is based on
police statements/what people said.
ii) Charge: attempt to commit assault with intent to rape
(1) now we can’t stack inchoate offenseon top of each other
(a) ex. one can't be guilty of "attempt at assaulting a policeman" b/c assault is
"attempted battery"
iii) Court ruled D is guilty
(1) AR: Act beyond the mere preparation of assault with intent to rape
(2) MR: Court says this is satisfied because of police officer’s testimony.
iv) Problems of this case:
(1) Consideration of social condition and customed founded upon racial differences
(2) Confession as basis of conclusion that mens rea is satisfied
(a) police’s testimony is always trusted but D’s testimony is not
(3) Lack of actus rea analysis
(a) Substantial step test:
(i) “Following the contemplated victim” is listed in MPC, but also must be
strongly corroborative of criminal purpose—can argue it is
(b) Proximity test:
(i) 3-feet away is dangerous close? Never approached her?
(c) Equivocality test:
(i) Setting aside his alleged confession by the police, his acts are still equivocal
((walking on street, leaning on sign) other than to rape). Turned out to be
most protective test for D (though it’s least favored)
(ii) Equivocality test would throw out statements made to police about intent
and only focus on actions.
(4) Show the risks associated with a broad definition of inchoate crimes
1) Other examples 669-671:

98
 a) Harper: D’s car park in lot near bank, police found guns, surgical gloves, and ammunition in
the car. D has set up “bill trap” to cause ATM shut down and repair for 45-90 mins
i) Charge: conspiracy and attempted bank robbery(set the bill trap in order to rob the
technicians of the money when they come to repair)
ii) Court ruled the act (bill trap) is equivocal in itself and D never made a move toward the
bank (since the 90 min waiting times has not passed) no attempt
b) Moore: D walked toward the bank, wearing ski mask, and carrying gloves, pillowcases, and
a concealed loaded gun
i) Court ruled there’s attempt b/c move toward victims with gun and mask
c) Joyce: D refuse to pay when undercover unwrapped half cocaine package and insists on
opening whole. Police told D to leave, and D left with no apparent intention of returning
later to purchase drug
i) Charge: attempting to purchase cocaine with intent to distribute
ii) Court ruled substantial step is not met, b/c D never produced money necessary to
purchase, all is preliminary discussion which broke down 失败了 (motive for refusing to
produce money, either want to see whole package or alerted by police, does not convert
mere preparation into an attempt)
d) Howard: D had sexually explicit conversion with undercover “mother”, transmit sexual
photos, discuss of specific travel details, instruct undercover mother to person sex acts on
and procure birth control for the girls, but had NOT yet committed to any specific plan
i) Charge: attempting to induce a minor to engage in sexual activity w/ him.
ii) Court ruled D cross substantial step line when instruct sex acts on & get birth control
iii) But easier under MPC if D has bought plane ticket to target city and made plans to have
the undercover mother meet him at airport. Roman
Impossibility defense
1) Traditional defenses to the crime of attempt:
a) Factual impossibility --- No
b) Legal impossibility --- Yes
2) Policy:
a) Balance the focus on culpability and the focus on extrarenal circumstance
i) Culpability is present
ii) but under external conditions, there was no danger and no harm can be done
3) Traditional categories:
a) People v. Jaffe (NY. 1906): buy things “stolen”? –-- legal impossibility
i) Fact: D tried to purchase stolen property, but actually they have been returned to owner
and put for sale, so it’s no longer stolen property. Undercover police let theft to pretend
the property is stolen and still sold to D.
ii) Charger: attempt to buy or receive stolen property, knowing the property is stolen
(1) attempt is often considered a lesser-included offense of target offense
(a) but should we do that? It may require higher mens rea
(b) element: knowledge is a material element
(i) act of receiving goods --- have proof
(ii) intent to receive stolen goods --- have proof

99
 (iii)knowledge that goods were stolen. -- no proof
(2) why not charged with complete crime? Bc not stolen property
iii) Court ruled NOT attempt
(1) Even if D completed the immediate act of “purchase good which was brought to his
place for sale”, it would not be a crime legal impossibility good defense
(2) D could not know the property is stolen when the property is not actually stolen
(a) Real focus is actus rea side (whether property is stolen), instead of mens rea
side (belief or knowledge the property is stolen)
(b) There can be no knowledge of a nonexistent fact
(c) If knowledge id an element of a crime, absence of knowledge makes it
impossible to commit that crime.
(d) If the intended act wouldn’t constitute a crime if completed, then it can’t be a
crime to attempt.
(e) The belief that an act is a crime doesn’t make it so
(3) Traditional approach:
(a) Factual impossibility no defense
(i) Where the intended act, if it could have been completed, would be a crime
1. ex. pickpocket case: put hand into pocket but found pocket empty
a. attempting to pock a pocket would result in a crime if the pocket
contained something.
2. ex. misfire because of poor aim or inadequate weapon
(b) Legal impossibility defense
(i) Where the intended act, even if completed, would not be a crime
1. J’s act wouldn’t have been a crime if he’d completed it.
(c) Turns on what the intended acts were (broad vs. narrow) depend on your aims
(i) If D intended to receive stolen goods factual, no defense
(ii) If D intended to receive these goods, which weren’t stolen legal, defense
1. Court chose this narrower intent for this case; but chose broader intent
for pickpocket case (general stealing or “motive”), instead of narrower
intent (steal a specific wallet or “intent”)
b) United States v. Berrigan:
i) Fact: D smuggled letters in/out of prison through a courtier believing the warden was
ignorant of what was going on, but actually the warden priorly knows the agreement
and agreed to let courtier pretend cooperation in the plan.
ii) Charge: attempt to take anything in/out of prison without knowledge of warden
iii) Court ruled NOT attempt
(1) Legal impossibility: where intended acts, even if completed, would not be crime
(a) The motive, desire or expectation is to perform an act in violation of law
(b) There is intention to perform a physical act
(c) There is performance of intended physical act
(d) The consequence resulting from the intended act does not amount to a crime
(i) Distinguish “intent” from “motive/desire/expectation”
1. Motive/desire/expectation = broad intent (what you want to do)

100
 2. Intent = narrower intent (what you actually do)
a. ex. A takes an umbrella which he thinks belongs to B, but it’s actually
his own, he has no intent to steal b/c his intent being to take the
umbrella he grasps in his hand, which is his own umbrella
(e) = a misbranded legal impossibility (like in Jaffe): actor hopes or expects to
achieve a result that’s indeed prohibited, but success is impossible because the
circumstance is not what he thinks
(2) Here, court thinks D has the required motive to perform illegal act (smuggling letter
w/o warden’s consent), but resulting consequence would not be crime (b/c warden
knew and consented)  legal impossibility  good defense
(3) But again, this case can be characterized in both ways:
(a) Factual –intent to get letters out of prison w/o warden’s consent
(b) Legal – intent to get these specific letters out of prison, which warden has
known and consented to
c) Problems of traditional approach:
i) These categories turn on what you described as intended acts
(1) Hypos:
(a) Shot at stuffed deer, thinking you’re shooting real deer out of hunting season
(i) Factual – Intent to shoot a real deer  no defense
(ii) Legal – intent to shoot the thing he aimed at, which is stuffed deer defense
(b) Shot at empty bed, believing people sleeping on it
(i) Factual – intent to shoot person on the bed  no defense
(ii) Legal - intent to shoot a bed, which is empty  defense
(c) Giving money to person, believing he’s a juror but actually he’s not
(i) Factual – intent to bribe a juror  no defense
(ii) Legal – intent to give money to a person, who’s not a juror defense
(d) Shooting at Sherlok Holmes’s shadow, thinking about it’s him
(i) Why not proximately test? Why factual/legal impossibility?
ii) Really easy to manipulate them to go either way (bad for law, good for attorneys)
iii) Concern of manipulation make people move away from it to MPC approach
(1) Another reason is perceived importance of use of undercover police, if misbranded
legal impossibility is recognized, suspect will have defense
4) Modern/MPC approach --- except the true legal impossibly, other no defense
a) People v. Dlugash (NY. 1977): shot “dead” man? --- refuse both factual/legal impossibility
defense
i) Fact: 3 men drank until 3:00 in the morning, Bush fired .38 caliber pistol 3 times on
Geller who repeatedly ask to borrow money. Geller fell to the floor and after 3-5
minutes, D fired his .25 caliber pistol for 5 times in victim’s head and face.
(1) None of the experts can say whether victim was dead or alive at the time D fired
bullets in victim’s head
ii) Charge: murder + attempted murder

101
 (1) But actually, murder does not require intent to kill, can be either of four malice
aforethought, court here just submitted 2 theories: “intent to kill” murder or
attempted murder (both required intents to kill)
iii) Murder? No
(1) Prosecution can’t prove victim was still alive when he’s shot by D, so can’t prove D
intend to kill a human being (it’s not murder to shoot a dead body)
iv) Attempted murder? Yes
(1) A D is guilt of an attempt to commit a crime if, with intent to commit a crime, the D
engages in conduct that tends to effect the commission of the crime.
(2) NY Penal Code: it’s no defense to attempt that the crime charged to have been
attempted as, under the attendant circumstances, factually or legally impossible of
commission, if such crime could have been committed had the attendant
circumstance been as such person believed them to be
(a) = MPC: “under circumstances he believes them to be” in every subclause
(b) Focus on the belief of the actor (mens rea, instead of actus rea)
(c) Only consider the FACTUAL circumstance that actor believed to be, does NOT
consider his LEGAL beliefs
(d) This is the trending approach; and abolish impossibility defenses, EXCEPT in
one situation:
(i) True legal impossibility: actor engages in conduct that she believes to be
prohibited but it turns out that no such crime exists
1. = intent to break an imaginary, non-existing law
2. Good defense in all approaches (though a mistake of law may be no less
dangerous than a mistake of fact)
3. ex. a person secretly carries $9k in cash out of country, thinking this is a
crime and not realizing it is permissible to do so
(3) Here, the jury has convicted D of murder, so they must have found D believed the
victim was alive at the time, thus D has intended to kill the victim no defense
(a) Takeaway: can you attempt to murder a dead man? Yes, as long as you believed
he was still alive
b) Hypos:
i) Shooting at a dead person, thinking is alive
(1) No defense b/c if the people is alive, you would kill him. →murder
ii) Shooting at a stump, thinking it is a person
(1) No defense b/c if the stump is really a person, you would kill a person  murder
iii) Buying non-stolen goods, thinking they’re stolen goods
(1) No defense, b/c if the goods are in fact stolen guilty of buying stolen property
c) Stete v. Smith- factual impossiblity
i) Prisoner who has HIV, spat on guard’s fact and said “die you pig, die from what I have.”
Evidence show medically impossible to transmit HIV by spitting/biting
(1) The court held guilty: evidence was irrelevant, so long as D believed it possible to
infect the officer + intended to kill.
d) Legal impossibility:

102
 i) 2 situation:
(1) When people engage in conduct that they believe to be prohibited, but actually no
such crime. (trye legal impossibility)
(2) the actor hopes or expects to achieve a result that the legislature has indeed
prohibited (such as receiving stolen property), but success is impossible because the
circumstances are not what the actor thinks (for example, because the property has
not actually been stolen).---court disagree on this
ii) MPC have huge infect on (2).
(1) Nearly all of them rejected defenses for factual impossibility & mislabeled “legal
impossibility” situations like Jaffe;
(2) But true legal impossibility is always a defense.
e) Lady Eldon’s French Lace
i) It’s not illegal to smuggle English lace, but illegal to smuggle French lace. Lady Eldon
smuggled English lace, believing she’s smuggling French lace
(1) No defense, b/c under the circumstance she believes to be (she’s smuggling French
lace), she’s guilty of the crime
ii) If smuggling French lace is no longer illegal, but she believed it’s illegal
(1) True legal impossibility is a defense
(a) Under the factual circumstance as she believes to be (she’s smuggling French
lace) she’s still not guilty of any offense
(b) Legal belief (knowledge of law) is not a factual circumstance
(2) Also has a mistake of law defense
(a) b/c not guilty of a lessor crime had [factual] situation as she believed to be
(b) ?? Section 2.04
(i) Section 2.04. Ignorance or Mistake
(1) Ignorance or mistake as to a matter of fact or 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; 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 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.
iii) if smuggling French lace, believing it’s actually English lace
(1) Mistake of fact elements analyses →has defense if negatives the mens rea
required
(a) knowledge of “French lace” is negated defense
iv) policy: it is too dangerous to permit juries to speculate on a defendant’s intent in the
absence of actions that strongly evidence that intent.

103
 f) MPC approach
i) Section 5.01. Criminal Attempt.
ii) (1) Definition of Attempt. 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:
iii) (a) purposely engages in conduct which would constitute the crime if the attendant
circumstances were as he believes them to be; or
iv) (b) when causing a particular result is an element of the crime, does or omits to do
anything with the purpose of causing or with the belief that it will cause such result
without further conduct on his part; or
v) (c) purposely does or omits to do anything which, under the circumstances as he
believes them to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime.
g) Problems of MPC approach
i) Can lead to absurd results - especially in cases where it’s obvious that the crime would
never actually happen, even if the actor subjective thought it would
(1) ex. use voodoo doll to kill person, believing it will kill him
(2) ex. person thinks they have superpower and try to kill someone with his left eyes
ii) Solutions:
(1) MPC 5.05(2) If the particular conduct charged to constitute attempt is so inherently
unlikely to result or culminate in the commission of a crime that neither such
conduct nor the actor presents a public danger warranting the grading of such
offense, the Court shall exercise its power enter judgment and impose sentence for a
crime of lower grade, or in extreme cases, may dismiss the case”
(a) = court/jury can use discretion to punish less, or finds no guilty
(2) Reasonable person standard:
(a) “If purposely does an act…under the circumstance as a reasonable person would
believe them to be, is a substantial step…then it’s an attempt”
(i) Go too far in opposite direction: a reasonable person will not think a person
can kill with a gun he mistakenly believed to be loaded
(3) Apply normal rules of attempt, especifically the actus reus part (minority view)
(a) United States v. Oviedo:
(i) Undercover police tried to by heroin from D. D met the police and gave him a
substance (field test think is heroin, but lab result is not but an uncontrolled
substance ).
(ii) Mimics the equivocality test: guilty if “objective acts performed w/o any
reliance on the accompanying mens rea, mark actor’s conduct as criminal in
nature”
1. Policy: proof of mental state is inherently unreliable where there are
only ambiguous acts to support inference
(b) Dangerous proximity?
(i) may take too many people off the hook b/c you can never get close to
committing a crime that doesn’t exist
(c) Equivocality – tracks MPC approach to culpability pretty closely

104
 (d) Substantial step – same

105
 Accomplice liability
1) Elements: To be an accomplice, one must
a) intentionally MR
b) aid or encourage the primary actor in the commission of target offense AR
2) accomplice → primary actor → target offense
a) Accomplice:
i) AR: aid or encourage
ii) MR: intentionally
b) Target offense
AR MR
→ CON (MR)
→ CIR (MR)
→ RES (MR)
→ (“free floating” MR)

3) Accomplice liability:
a) Not a separate offense it’s a theory to find liability for target offense
i) Charge will be the target offense (Cf. attempt is itself a crime)
ii) ??Can’t be liability of attempt
b) Expand potential liability from just primary actor & target offense (parallels to attempt)
i) Can have one more way to find liability for target offense
ii) Can have more people to be guilty by virtue of their complicity with the primary actor
4) Traditional common law categories
a) Principal in the 1st degree
i) Primary actor of target offense (absolute perpetrator of the crime)
b) Principal in the 2nd degree
i) Present (actual and constructive) in the commission of crime, aiding and abetting it
Accomplice (1) Actual presence: standing by, within sight or hearing of the fact
today (2) Constructive presence: lookout for other at convenient distance, not physical
present, but close by.
c) Accessary before the fact
i) Not present in the commission of crime but procure, counsel, or command another to
commit a crime (instigator)
ii) later grouped with “principal in the 2nd degree” to constitute accomplice liability
(1) the factor of “presence” is not significant anymore
(2) still charged w/ target offense, just based on theory of accomplice liability
d) Accessary after the fact
i) Helps criminal to get away
ii) Treated as separate crime, not included in accomplice liability
(1) Lesser sentence
5) Modern Approach 3/10 23
a) Principal in the 1st degree ---- “Primary actor”
b) Principal in the 2nd degree ---- “Accomplice”

106
 c) Accessary before the fact ---- “Accomplice”
d) Accessary after the fact ---- “Separate Crime”
e) Present doesn’t matter
6) Examples (Common law approach)(modern approach)
a) A hires B (Instigator – accessory before the fact – accomplice – target offense)
b) B breaks the kneecap (primary actor – principal in 1st degree – primary actor)
c) C stands lookout (constructive present – principal in 2nd degree– accomplice)
d) D hides B (Accessory after the fact – separate offense of “accessary after the fact”)
Mens rea: intentionally aid or encourage the commission of target offense

1) Conduct: purpose to aid or encourage conduct of primary actor

a) State v. Gladstone (Wash. 1970): purpose
i) Fact: undercover police visits D to buy marijuana, D said he did not have enough but
volunteered the name of Kent as who did have and willing to sell; gave Kent’s address,
drew a map; police went to Kent’s and bought marijuana; no evidence of any
communication between D and Kent concerning marijuana
ii) Charge: unlawful sale of marijuana (under theory of aiding and abetting)
(1) Can’t be liable for aiding the purchase, b/c lawful actions by undercover police
iii) Kent is primary actor (actually sold weed)
iv) Holding:
(1) Mens rea (for conduct): purpose to aid or encourage primary actor’s conducts
(a) “Must associate himself with the venture, participate in something that he
wishes to bring about, that he seeks by his action to make it succeed”
(i) Note: “purpose” is only required for conduct element, and only for the
conduct of the primary actor, not the accomplice
(ii) So far it parallel attempt, which also require purpose for conduct
(b) = MPC 2.06: “purpose of promoting or facilitating the commission of offense”
(i) “Commission of the offense” = conduct of primary actor
(c) Minority approach: some courts require only knowledge that his conduct will
have the effect of aiding or encouraging the conduct of primary actor
(d) Here, D may not necessarily have the purpose to help effectuate the sale by Kent

107
 (i) maybe D didn’t have the purpose to aid or abet the purchase by drug either
Could’ve just wanted the guy to come back again and buy from him b/c he
was friendly & helpful.
b) Rosemond v. US (US. 2014): advance knowledge + active participate
i) Fact: 2 men went on sale of marijuana but the sale went bad. The buyer punched the
seller in the face and ran off with the marijuana without paying. One of the men
(Rosemond or Joseph) fired a bunch of shots from a semi-automatic handgun.
ii) Charge: carrying or using a gun in connection with a drug trafficking crime
(1) Primary actor: whoever fires the gun (we don’t know)
(a) Gov’t presents two alternative theories: primary actor / accomplice
(i) Common practice when gov’t doesn’t know which D committed the crime
(2) No mens rea is specified in the federal “aid and abet” statute, so court must solve it
iii) Court clearly favors purpose for conduct, but provides another way to get there
(1) Mens rea: active participation + advance knowledge (knowledge that enable actor
to make relevant legal or moral choice) = purpose
(a) How far in advance? –enough time to make a realistic choice
(i) If the crime is already in progress when D first become aware of the use of
gun, he may not have sufficient notice to be held responsible for it
(b) Not require conscious object for purpose as MPC
(i) if require conscious object, then advance knowledge and actively participate
but is indifferent to carrying the gun not liable
(c) Incidental facilitation vs. active participation may be relevant
(i) What if incidental facilitation + advance knowledge? Court refuse to say
1. lower level of participation may require a higher mens rea (hinted at)
(d) Rarely applied in other cases even in federal courts & this offense is peculiar
iv) Concurring?
v) Dissent: majority is confusing CIR with CON (D is liable if aware of the gun and persist
drug deal with that knowledge), and isn’t clear whether P or K applies to CON
(1) but we are sure P is required for conduct
(2) treating “gun” aspect as CIR is not convincing, b/c it involves “using or carrying” gun
b) Should P or K apply to the conduct element?
i) Hypos:
(1) Day-labor is clearing the field, knowing the field will be used for drug dealers
(2) Car salesman who sells the car, knowing it will be used in a bank robbery
(3) Merchant who sells a stocking, knowing it will be used as mask for bank robbery
(a) What Rosemond court thinks is incidental facilitation + advance knowledge
(4) Merchant who sells screwdriver knowing it will be used as a jimmy in a burglary
(a) Fungible goods vs dangerous things (ex. guns)
(b) Proximate cause (how far removed from target offense)
ii) Majority rule: purpose
iii) Original MPC draft: knowledge + substantial participation  rejected by ALI
iv) Posner approach: purpose for minor crime, knowledge for major crime
(1) Consider seriousness of crime

108
 v) NY Penal Code: criminal facilitation as separate, lessor crime for aid without true
purpose, with a matching lesser sentence
(1) considers level of involvement and seriousness of crime
(2) Many parts you can move around to shift MR up or down for accomplice liability.
2) Result: match the MR of result in target offense
a) State v. McVay (Rhode. 1926): boiler explosion
i) Fact: Kelley knew there was something wrong with the boiler but counseled captain and
engineer to take the passengers on anyway. The boiler exploded and 4 people killed.
ii) Primary actor: captain and engineer
iii) Charge: accomplice to involuntary manslaughter
(1) mens rea for target’s result = criminal negligence or reckless
iv) Issue on appeal: can you intentionally aid and abet an unintentional act? Yes, and one
can be accomplice for involuntary manslaughter, b/c
(1) Mens rea for result: match the MR of result element of target offense
(a) Here, D was at least reckless in counseling captain and engineering to take on
passengers when he knows there’s some issue with boiler MR satisfied
(b) = MPC 2.06(4) for result, only need to match MR of result in target offense
(c) But for conduct element, still requires purpose
(d) Reaffirmed in Commonwealth v. Roebuck
(i) Facts: D was charged with complicity in a 3rd degree murder (unintentional
murder with malice aforethought = extreme reckless)
1. Court ruled MPC requires purpose for conduct element, but for result
elements, only need to match MR required for result of target crime
(e) Why different from attempt’s requirement? (Purpose for result element)
(i) If the boiler doesn’t explode, can they be attempt?
1. No, need to have purpose. Don’t have purpose for an unintentional act.
2. Kelly? Case 3/23 9
(ii) With attempt, the result is never achieved, so it need a higher mens rea to
make sure actor is culpable
(iii)With accomplice the result must have been achieved (If there’s no crime, you
can’t have derivative accomplice liability). Retaliatory impulse is stronger
when there’s resulting harm
v) the accomplice must have
(1) For Conduct: specific intent to further the underlying conduct committed by the
principal
(2) For result: only need match MR required for result of target offense.
b) People v. Russel (NY. 1998): shot in gunfire
i) Fact: public school principal was shot and killed in the gunfire of 3 co-defendants in
central mall in Brooklyn, but unclear which D fired bullet that killed the victim
ii) Charge: accomplice to 2nd degree, depraved-in-difference murder
(1) mens rea for result element of target offense = extreme reckless
(2) Ballistics test was inconclusive - doesn’t matter b/c all Ds satisfy accomplice liability
which leads to the same result as a murder charge.

109
 (a) They would still be charged with the same subsequent offense but on different
theories of liability.
(i) The theory of liability doesn’t actually have to be spelled out in the
indictment, can be but don’t have to be, can be just charged flat out with the
offense.
iii) Court ruled D is guilty
(1) Mens rea for result: match MR for result of target offense  extreme reckless
(a) D shows awareness of risk of engaging in gun fire, that risk is extremely
unjustifiable and indifference to human life
(2) Actus rea issue: How can adversaries intentional aid or encourage each other?
(a) The acceptance of challenge (& participation in gun battle) is an implicit mutual
encouragement and agreement to engage in that conduct
(i) “If D took up another’s challenge, shared in the venture, and unjustifiably,
voluntarily, and jointly created a zone of danger, then each is responsible for
his own acts and the acts of others”
(ii) Can’t engage in a gun battle by yourself –there must be some joint enterprise
(b) Similar case: People v. Abbott: two Ds engaged in drag race on residential street,
one of them lost control and smashed another car, killed a person
(i) “Although D did not stick victim’s car himself, and was adversary in the
competitive race, his acceptance of challenge makes the race possible in the
first place, thus intentionally participated in the inherently dangerous and
unlawful activity and share culpability”
(ii) Such case is also solve on causation basis
c) Other examples
i) ex. D-passenger in a hurry to catch a flight and ask Taxi driver to get him to airport on
time and “do whatever it takes.” Drives over speed limit and kill a person
(1) Target offense is negligent homicide and D is negligent to result of death
ii) ex. D give his car key to roommate, knowing the roommate has been drinking all day.
Roommate drives drunk and hits and kills a pedestrian
(1) Satisfy reckless for result element, but not purpose for conduct element?
3) Attendance circumstance: at least match MR of circumstance in target offense
a) MPC is silent—deliberate ambiguity as to whether purpose extends to AC element
i) Left to resolution by the courts
b) Conflicts among courts
i) ex. For providing firearm without knowing the person’s felony conviction
(1) some federal court requires knowledge (Gardner); some federal court just need
strict liability that’s required by target offense (Canon)
ii) ex. For statutory rape
(1) some state courts accept strict liability (Harris); some require at least negligence or
even knowledge (Bowman)
iii) MPC disfavors strict liability except for violations
c) Policy:
i) May want to leave flexibility for different kind of results in different cases

110
 ii) But this leaves ambiguity in the law, which is bad from a public information standpoint.
d) Bottom line: at least match MR for circumstance of target offense
i) This is the floor - more may be required in different courts
4) Reasonably foreseeable consequence doctrine
a) = Luparello approach—relax traditional MR requirement when primary actor does a totally
different crime that involve conducts not intended by accomplice
b) Minority approach
i) Only 20 states clearly endorse it; many states limit the reach of Luparello
ii) MPC reject it: when a wholly different crim has been committed, thus involving conduct
not within the conscious objective of the accomplice, he is not liable for that
c) People v. Luparello (CA. 1987): from felonious assault 1st degree murder
iii) Fact: D want to discover former lover’s whereabouts from Martin, and enlist help from
friend, telling them he wanted the information at any cost. His friend visited, failed, and
returned, armed with gun and sword, without D, lured Martin outside and one of them,
waiting in the car, shot and killed Martin.
iv) Charge: accomplice to 1st degree murder (b/c lying in wait)
v) Court ruled D is guilty
(1) Traditional mens rea analysis: MR is not satisfied to conduct element
(a) Clearly no purpose to encourage the killing (want info from Martin, so can’t
want him to be dead)
(b) Only wanted a felonious assault and at most negligent/reckless for the killing
(2) Reasonably foreseeable consequence doctrine: accomplice is guilty not only of
the offense he intended to aid or encourage, but also of any reasonably foreseeable
offense committed by the person he aids and encourages (minority approach – 20
states)
(a) Only require negligence for accomplice as to the target crime
(i) D is liable even if he was not aware of the risk, but a reasonable person
would have foreseen the risk of such another offense
(ii) And no mention of requiring unjustifiable or substantial risk
(b) Greatly expands liability by dramatically lowering the requisite mens rea
(c) Must first be an accomplice to the target offense that didn’t occur, then can only
be held liable for “reasonably” foreseeable offense
(d) Criticisms:
(i) This doctrine is disproportional to the culpability of this person
(ii) Permit liability based on negligence for 1st degree murder
(iii)Assess culpability based on mental state and acts of another (lying in wait)
and circumstance of the crime, which is not controlled by the person at all
vi) Overruled by CA court itself (People v. Chiu): Luparello can be applied in 2nd degree
murder, but not in 1st degree murder
(1) 1st degree murder is uniquely subjective and personal (it require more than intent
to kill, but also deliberate weighing of considerations), so the connection b/w D’s
culpability and primary actor’s premeditative state is too attenuated to impose
accomplice liability

111
 c) Roy v. United States (DC. 1995): stress of “reasonableness” limitation
i) Fact: D referred undercover police to Ross for illegal gun purchase. Ross took police to
another area and robbed him to avenge police’s earlier stickup of his group
ii) Charge: accomplice to armed robbery
iii) Trial court order “Luparello approach” for jury instruction
(1) Instruction: D L if the robbery was the natural and probable consequence of the
illegal attempt to sell a handgun, even if he did not intend Ross to rob Miller.
iv) Gov’t argument:
(1) it’s natural and probable to have armed robbery from illegal gun sale, b/c it furthers
the common purpose of obtaining money
v) Court rejected and ruled D is not guilty, reexamining Luparello approach
(1) Requires “ordinary course of things”, which refers to what may reasonably ensue
from the planned events, NOT to what might conceivably happen
(2) Here, robbery is conceivable, but not reasonably foreseeable from illegal gun sale
(a) Sale of a handgun for $400 is qualitatively different from an armed robbery in
which primary actor stole $600 and retained himself the object which, in D’s
contemplation, was supposed to be sold
(3) Most states think natural and probable consequence test goes too far, restrict it by
limits like “reasonably foreseeable”
Actus rea: aid or encourage
1) Hicks v. United States (US. 1893): need actual encouragement
a) Fact: 2 Indians (D and Rowe) and 1 white (Colvard) drink a lot and ride. Colvard approach
to Rowe and the 3 starts talking, Rowe raise gun twice and aim at Colvard and lowered it. D
laughed loud, takes off his hat, hit his horse on the neck and say to Colvard “take off your hat
and die like a man”. Colvard shot by Rowe. D and Rowe first rode off together then separate.
D claims he feared for his life and was trying to stop Rowe from killing.
b) Charge: murder (Rowe was never charged b/c he was killed)
i) Primary actor is Rowe, D can only be liable as accomplice and can still be convicted
under accomplice theory even without a primary actor’s murder charge
(1) Always start by identifying the primary actor
c) Issues on jury instruction
i) Mens rea:
(1) required: Malice Aforethought/ Actus Reus: Killing
(2) instructed: Deliberate/Intentional use of words had the effect of encouraging one
man to kill another, he who uttered them is presumed to intend that effect and is
responsible
(3) mere effect of encouragement is not enough, need intention to effect encouragement
ii) Actus rea: mere presence is not enough w/o some preconcert or other actions that
amount to encouragement
(1) Prearrangement has the psychological effect of encouraging the primary actor with
mere presence, so presence + prearrangement to aid/encourage = encouragement

112
 (2) Actus Reus instructions: If Hicks was present & there for the purposes of
encouraging & he did not do so but was present, he didn’t do it because it wasn’t
necessary and could be done without his assistance
(3) If parties have evidence of previous arrangement it would show intent for mens rea
& psychological impact for the actus reus
(a) Prearrangement & presence can create encouragement; just a presence is
neutral
d) Federal jurisdiction over the killing of non-Indian victim by Indian on the Indian land
e) Hypo:
i) Hicks hears that Rowe has set out to kill his old enemy Colvard, goes along with Rowe,
and watches the killing process with inner joy
(1) Hicks isn’t an accomplice because there’s no actual aid and there hasn’t been
prearrangement for encouragement & no intention to aid or encourage
(2) MR (x): no intention to aid or encourage, even if he wants it to happen
(3) AR (x): no actual act of encouragement except mere presence
ii) Same as 1 except, while watching Rowe’s assault on Colvard with satisfaction, Hicks
shouts such words of encouragement to Rowe as “go get him” and “Attaboy”
(1) Hicks is an accomplice because he’s providing encouragement & has the intent to
encourage from those words
(2) MR (y): words reveal intention to encourage
(3) AR (y): words are enough for actual encouragement
iii) Same as 1 except Hicks resolve in his heart to help if necessary
(1) Hicks is not an accomplice because there was no aid given (no actus reus)
(2) MR (y): maybe, intention to aid if necessary
(3) AR (x): no actual act of encouragement except mental decision
iv) Same as 3 except Hicks tell Rowe on the way that he will help him if it seems necessary
(1) Hicks is an accomplice because they had prearrangement and shows intention to aid
and gives encouragement
(2) MR (y): intention to encourage
(3) AR (y): prearrangement of aiding is actual act of encouragement
(a) When mental decision to aid is communicated, it amounts to encouragement
2) State v. Gladstone (Wash. 1970): vital nexus of encouragement
a) Fact: undercover police visits D to buy marijuana, D said he did not have enough but
volunteered the name of Kent as who did have and willing to sell; gave Kent’s address, drew
a map; police went to Kent’s and bought marijuana; no evidence of any communication
between D and Kent concerning marijuana
b) Charge: accomplice to unlawful sale of marijuana
i) Police action: Even if you do everything that amounts to the crime you have a defense if
you’re acting for the police; Can’t derive liability for target offense that’s not there
(purchase) but the sale was illegal
c) A purpose to aid or encourage the primary actor is required, Gladstone just had knowledge
d) Need a nexus/prearrangement/connection to show encouragement
i) Defendant must associate himself with the venture, participate in it as something he
wishes to bring about, that he seeks by his action to make succeed
e) Court ruled D is not guilty

113
 i) Actus Rea:
(1) No evidence of a vital nexus between D and primary actor
(a) Nexus is relevant for AR based on encouragement: without a nexus (i.e.
communication), we cannot say D encouraged the crime
(b) Missing connection between Gladstone/Kent, There was no prearrangement
between the parties, but there was actual aid
ii) Mens rea:
(1) Gladstone’s mens rea was knowledge
iii) Two theories of actus rea
(1) actual encouragement (subjective as to the effect on the primary actor)
(2) OR actual aid (objective as to the effect on the primary actor)
(a) mere aid is enough, not necessarily have to be encouragement
(i) Illustrates fallacy of vital nexus - it’s not actually always required that people
encourage (talk or arrange beforehand)
(b) inconsistent with court’s opinion here, in that D actually aids in this sale
3) Wilcox v. Jeffery (Eng. 1951): thin actus reus
a) Fact: D greet illegal saxophonist in airport, but did not arrange and only know their coming,
went to the concert, paid for ticket, did not get up and protest. It’s not found whether D
applauded, but he produces a laudatory description in his magazine
b) Charge: accomplice to illegal play of foreign artists
c) Court ruled D is guilty
i) Mens rea: take advantage by getting copy for his paper = intention to encourage
(1) if you’re profiting, you have a purpose for him to engage in this conduct.
(a) But it doesn’t bear on the actus reus unless there was some kind of
prearrangement.
ii) Actus rea: presence without protest (ex. did not boo) + payment of ticket =
encouragement in certain circumstance
(1) Even minimal aid/encouragement will do, but mere presence is not enough
(a) Intentional presence can be evidence, but not dispositive
(b) Accidental presence is not even evidence
(2) Illustrate how thin AR for accomplice liability can be
(3) Accomplice liability does not require but-for causation
(a) Even if D did not go to the concert, the artists will still perform and break law, so
D is not but-for cause. But D is still liable
(b) Accomplice only need to influence a person who’s making a voluntary choice
(i) We can influence other, but not easily cause other to do things, b/c human
choices intervene
(ii) Primary actor is not treated as intervening factor, even if he’s always the
cause of the target offense
1. Saying accomplice was using primary actor as a tool basically absolves
primary actor of liability.
2. Primary actor is still making a conscious choice (& we want to hold him
accountable). Human being are actors because they have volition
4) State v. Tally (Ala. 1894): minimal aid is enough

114
 a) Fact: Ross has seduced Judge Tally’s sister-in-law. Skelton brother followed Ross to kill him.
Judge Tally tells telegraph operator not to deliver the warning telegram to Ross and
operator did so. Tally’s brother then killed Ross
b) Charge: accomplice in Skelton brother’s murder
i) Primary actor is the Skelton brothers, Tally is potential accomplice
c) Court held Judge Tally is guilty
i) Actus rea for accomplice liability can be satisfied by either
(1) Actual encouragement: require a vital nexus by preconcert or at least known
(2) OR actual aid: even minimal aid is enough (“destroying a single chance of life, even if
same result would’ve been attained anyway”)
(a) Just need to make it easier for primary actor, does not need be but-for cause
ii) Here, there’s no encouragement, b/c Skelton brothers did not know D prevent Ross
from being warned, but D provides some aid by sending telegram to telegraph operator
and prevent warning
d) Hypo:
i) Judge had told killers that he will try to prevent warning the telegram, but the telegram
reach Ross anyway. Yet Skelton brothers still succeed in killing Ross
(1) AR is satisfied by encouragement (ineffective aid can be an encouragement b/c it
has the psychological effect of an encouragement)
(a) Aid or encouragement is each alone enough to satisfy AR
5) Attempted complicity:
a) Traditional approach: attempt to aid or encourage is not enough for accomplice liability
i) ex. uncommunicated encouragement or failed aid
b) MPC approach: an attempt to aid or encourage = accomplice liability for the crime
committed by the primary actor (if the person acts with required mens rea for complicity)
(Attempt to aid = Complicity for a crime committed by the primary actor so far as the actus
reus of the potential accomplice is concerned) Check slides 3/24
i) MPC 2.06(3)(a): A person a is accomplice of another person in the commission of
offense if with the purpose of promoting or facilitating commission of the offense, he
(1) Solicits such other person to commit it; or
(a) Solicitation include encouragement. MPC 5.02(1)
(b) Uncommunicated solicitation is enough for liability if the conduct is designed to
effect such communication. MPC 5.02(2)
(2) Aid or agree or attempts to aid such other person in planning or committing it
c) ex. Judge intended to help unbeknownst to the killers, and tried to help by attempting to
intercept telegram, but failed b/c telegraph machine broke down.
6) When NO crime committed:
a) Traditional approach:
i) If no crime actually committed, there’s no accomplice liability (derivative in nature)
(1) Technically, can be liable for accomplice to attempt. But if primary actor never meet
AR for attempt (ex. dangerous proximity), still no accomplice liability
b) MPC approach

115
 i) Attempt to aid = attempt for a crime NOT committed by the primary actor if it would
have established complicity had the target crime been committed
(1) MPC 5.01(3): “A person who engage in conduct designed to aid another to commit a
crime which would establish his complicity under § 2.06 if the crime were
committed by such other person, is guilty of an attempt to commit the crime,
although the crime is not committed or attempted by such other person”
(2) What about attempt to encourage? Liable for conspiracy, not attempt/complicity
c) ex. Judge by pre-concert with killers successfully intercepted the telegram, but for other
reasons, the killers never found Ross and never killed him
7) Hypo:
a) D know john is planning to kill sally at a rally and hopes John will succeeds, because sally
has been mean to D in the past. D said nothing, but when he saw sally leaving the rally, he
talk her into staying so that John will have a chance to kill her. John kills sally at the rally in
cold blood. John is unaware of D’s actions, and probably would be able to kill her anyway
i) Accomplice liability? Yes
(1) AR: aid by giving John more chance to kill (even a small amount of aid is enough)
(2) MR: purpose to aid the conduct of killing (hopes the killer succeed) and purpose for
the result of death (hopes the victim died)
b) D knows that John plans to kill Sally, hope he succeeds. When D see him searching the
crowd, he said “john, sally is in the alley, go get her.” john doesn’t hear that but find Sally
anyway and kills her in cold blood.
i) Accomplice liability?
(1) AR: traditionally, uncommunicated encouragement is not enough
(a) No actual aid or encouragement: D was only trying to provide location, but killer
did not hear and was not actually aided or encouraged
(2) MR: purpose to encourage by trying to provide location
c) D knows that John is planning to race his motorcycle in the crowd. D want him to do it and
tell John to go for it b/c it’s entertaining to watch people jump out of the way. D help John to
tune his motorcycle. John accidentally kills Sally when motorcycle goes out of control.
Assume John is reckless.
i) Accomplice liability? Yes
(1) AR: words (classic encourage) and help to turn on motorcycle (aid)
(2) MR: purpose to conduct; matching target offense for result (involuntary
manslaughter only requires negligence for result, and D is reckless here)
(a) One can purposely aid and encourage involuntary manslaughter
d) D knows that John is planning to go to rally to pickpockets rallygoers b/c it will be easy for
him to get escape in the crowd. D tell hims to go for it. While John’s escaping through the
crowd, he runs into Sally, knocking out his two front teeth. D was charged with battery, even
though D didn’t touch Sally at all
i) Accomplice liability? Depends on jurisdiction
(1) MR: traditionally: no purpose with respect to battery no liability
(a) Luparello jurisdiction: battery is reasonably foreseeable consequence from
pickpocketing accomplice liability

116
 e) D knows that John is planning to break into the ticket office to steal the receipts. D hopes he
does it and encourage him in words. But John instead rapes an employee at the ticket office.
i) Roy approach: rape is not reasonably foreseeable from burglary, b/c the connection of
intention between burglary and rape is too farfetched

Relationship b/w liability of accomplice and primary actor

1) Defenses of principal: Chart 3/24 105?

i) Element-based defense of primary actor preclude accomplice liability - bc no crime at
the end of the line
ii) Negate the mens rea required, thus is a defense, ex. mistake
b) cross-cutting defense: apply across the board to a whole class of crimes
i) result in acquittal even if all the elements are met (Cf. elements-based defenses)
ii) Justification defense of primary actor preclude accomplice liability – bc no crime at the
end of the line
(1) Justification = conduct that’s otherwise criminal is socially desirable, thus it’s lawful.
(a) ex. self-defense; defense of property, choice of evil
iii) Excuse defense of primary actor does NOT preclude accomplice liability, b/c excuse is
personal in nature
(1) Excuse = conduct is socially undesirable, but is not morally blameworthy
(a) ex. insanity; infancy; duress; necessity; involuntary intoxication
(2) Historically, there was a difference between justifications and excuses
(a) Justification meant it was not a crime
(b) Excuse meant it was a crime, but you are pardoned for it
iv) Extrinsic policy defense of primary actor does NOT preclude accomplice liability, b/c
ground of defense are reasons of policies inapplicable to the accomplice
(1) Extrinsic policies = conduct is undesirable, actor is blameworthy, but other concerns
outweigh criminal law goals
(a) ex. statute of limitations (administrability & evidentiary concerns), diplomatic
immunity (international peace and security), double jeopardy, entrapment
c) State v. Hayes (Mis. 1891): element-based defense
i) Fact: D proposed Hill to join him in a burglary of store. Hill, a relative of storeowner,
feigned acquiescence to arrest D and advised storeowner of the plan. D raised the

117
 window and assisted Hill in climbing through into the building. Hill handed a side of
bacon to D but D never entered the building himself
ii) Charge: accomplice to burglary and larceny
(1) Primary actor (Hill) is not guilty of burglary
(a) Element-based defense: does not have the required MR (no intent to commit
burglary w/ his feigned acquiescence)
(2) Thus, D is NOT guilty of burglary as accomplice
(a) Element-based defense precludes accomplice liability (no crime at end of line)
(b) Traditional approach: accomplice liability is derivative liability: If no crime
committed by primary actor, no accomplice liability
(i) ? problem of undercover police?
(3) D is also not guilty of burglary as primary actor
(a) Element-based defense (did not commit acts that will constitute elements of
burglary – did not enter the store at all.)
(b) But D is guilty of larceny as primary actor (carry and take away the bacon w/
intent to permanently deprive)
iii) What if D tricked Hill that this is his store and key locked inside, so want him to go
inside and find key for him. Hill then goes in the store.
(1) Innocent agent theory: if D uses an innocent agent to commit the crime, then he is
guilty of the crime as a primary actor
(a) No need to rely on accomplice liability anymore, so the fact that primary actor is
not guilty of any crime does not matter
(b) MPC 2.06(2)(a) “A person is legally accountable for the conduct of another
person when acting with the kind of culpability that is sufficient for the
commission of the offense, he causes an innocent of irresponsible person to
engage in such conduct”
(i) You have taken away the will of the person - fixes causation problem
d) Vaden v. State (Ala. 1989): failed justification defense
i) Fact: undercover police posed as hunter for D’s illegal hunting service. On the hunt. D
piloted and maneuvered aircraft to facilitate police’ shooting game with a shotgun D lent
him for the purpose. Police shot and killed 4 foxes
ii) Charge: hunting in violation of Alaska law (accomplice theory)
(1) Primary actor, the undercover agent, is guilty of the crime
(a) No “public authority justification defense”: did not act within reasonable range
of justification (killing 4 foxes is too much)
(2) Then D can be guilty as accomplice, b/c primary actor is guilty of the crime
(a) Accomplice liability met: D intends to aid (MR) and indeed aid (AR) the hunting
of undercover agent
(b) Court ruled even if agent has justification defense, D will still be guilty
(i) Conflict with majority rule: justification should preclude accomplice liability
(ii) Supported by public policy of effective law enforcement: accomplices should
be liable without officers having to do something unjustified to engage in
successful sting operations.

118
 (3) Entrapment defense: when an accomplice is a government agent who improperly
induces defendant’s criminal activity
2) Acquitted principal
a) Even if primary actor is acquitted, accomplice’s liability still depends on whether
prosecution can prove all element in a separate trial
b) MPC 2.06(7) An accomplice may be convicted on proof of the commission of offense and of
his complicity therein, though the person claimed to have committed the offense has not
been prosecuted or convicted or has been convicted of a different offense or degree of
offense or has an immunity to prosecution of conviction has been acquitted
3) Lesser culpability of principal: can accomplice be convicted of greater offense than principal?
a) Regina v. Richards (1974): element-based defense
i) Fact: wife hired two men to beat up her husband, told them to “beat him up bad enough
to put him in hospital for a month”. The men attacked her husband, but he escaped
without serious injury.
ii) Charge: felonious assault and misdemeanor assault
(1) Primary actors (two men) are not guilty of felonious assault
(a) Element-based defense: no required MR for felonious assault (no intent to cause
serious harm)
(b) Only guilty of misdemeanor assault (intent to cause harm)
(2) Accomplice (wife) is NOT guilty of felonious assault
(a) Element-based defense preclude accomplice liability (no crime at end of line)
(b) But D is guilty of misdemeanor assault as accomplice
(i) Primary actors are guilty of misdemeanor assault, so there is basis for
accomplice liability, and D satisfy MR and AR for accomplice liability
b) People v. McCoy: two men drive-by shooting. McCoy fired the fatal shots. Lakey aided and
abetted. Charge: murder for both
i) Primary actor (McCoy)’s murder conviction is reduced to voluntary manslaughter
(1) Partial self-defense (unreasonable but good faith belief in need to self-defense) is
treated as partial excuse, not partial justification here
ii) Accomplice (Lakey) is convicted of murder
(1) Partial excuse does not preclude accomplice liability
c) Hypo: Iago falsely tell Othello that his wife Desdemona was having an affair, hoping Othello
would kill her out of jealousy. Othello does so without Iago’s further involvement.
i) Primary actor (Othello) is only liable for voluntary manslaughter
(1) Intent to kill his wife + provocation formula
ii) Can Iago be guilty of murder as an accomplice?
(1) Depend on what kinds of defense you think provocation formula act as. Was there
still a crime committed at the end of line?
(2) Only a partial defense, there’s still some guilt on the part of primary actor (Othello)
(a) Partial innocent agent? Othello was tricked and taken away part of his will
(i) Liable for murder as primary actor
(b) Partial excuse? Othello’s moral blameworthiness is reduced by Iago’s lie
(i) Liable for murder as accomplice

119
 (c) Partial justification? Othello’s killing is partially justified b/c his wife betrayed
(thus wronged) him in his belief misled by Iago
(i) Not liable for murder, b/c justification defense preclude accomplice liability
(no crime at end of line)
(ii) But still liable for voluntary manslaughter as accomplice (crime end of line)
(d) Partial element-based defense?
(i) Not liable for murder, b/c element-based defense preclude accomplice
liability (no crime at end of line)
(ii) But still liable for voluntary manslaughter as accomplice (crime end of line)
4) Greater culpability of principal: instigator can be lesser crime than perpetrator
a) ex. the enraged Othello hired a killer to kill Desdemona
b) Primary actor – hired killer is guilty of murder (act in cold blood)
c) Instigator – Othello is guilty of voluntary of manslaughter (heat of passion)
i) No innocent agent theory, b/c killer is not innocent (with intent to kill)
5) Accomplice is victim
a) MPC 2.06(6): a person is not an accomplice in an offense committed by another either (a) if
he is a victim of that offense, or (b) if the offense is so defined that his conduct is inevitably
incident to its commission
i) Queen v. Tyrell: court reversed conviction of a minor for aiding, abetting, and
encouraging statutory rape upon herself by an adult
6) Hypo:
a) Moller is relaxing by swimming pool, cigarette smoking man appear and pull gun on him
and say “prepare to die”, Scully saw this and throw his gun to Moller who shot cigarette
smoking man between the eyes. Scully did not want to save Moller but want him to kill the
cigarette smoking man b/c he hates him. Assume Moller is not guilty by self-defense
i) No liability, b/c Moller has justification defense (self-defense)
(1) Moller commit no crime w/ justification defense, so no derivative liability either
(2) innocent agency theory does not apply (Moller still exercise his own will when he
pulls the trigger)
b) Scully told a lie to Moller that cigarette smoking man is pointing a gun at him and want to
kill him. Moller shoots the man over his shoulder without looking w/ Scully’s guide. Assume
Moller has valid self-defense claim
i) Liability based on innocent agent theory, not on accomplice liability
(1) Moller is not guilty with self-defense justification, so no accomplice liability
(2) But Scully become primary actor by using innocent agent Moller and trick him to
commit crime, so he is guilty
c) Moller is insane and think cigarette smoking man is a space invader. He tells Scully he will
kill the man but did not tell Scully his belief. Scully is sane, say he will act as lookout b/c he
wants the man to die. Scully indeed act as lookout
i) Liability b/c Moller only has an excuse defense (insanity)
(1) Moller has committed a crime w/ excuse defense, so there can be accomplice
liability on Scully
(2) & Accomplice liability met by Scully (intent to aid killing + aid as lookout)

120
 d) Another hypo 1:17
i) Innocence agency theory
e) Moller told S gonna kill smoker
f) Acquitted
g) MPC §2.06(7) An accomplice may be convicted on proof of the commission of the offense and of his or her
complicity therein, though the person claimed to have committed the offense has not been prosecuted or
convicted or has been convicted of a different offense or degree of offense or has an immunity to
prosecution or conviction or has been acquitted.

Conspiracy

1) = agreement between 2 or more person to commit a crime

a) Usually only defined with actus reus, without mens rea
b) Crime in itself
2) Inchoate offense
a) Like attempt, aim at preparatory conduct before reaching actual commission of offense
b) But much broader than attempt, b/c point of agreement is far earlier than mere
preparation
3) Accessory liability
a) Like accomplice liability, you are held liable for actions of others
i) Agreement can be a kind of encouragement for accomplice liability
ii) Pinkerton doctrine expand liability to other people’s crime
b) Unlike accomplice liability, conspiracy is separate crime from object offense
i) Can have separate punishment and in addition to object offense
ii) To address “special danger” of group criminal activity
4) Procedural consequence
a) Evidentiary door: each co-conspirator is liable for other co-conspirators’ testimonies
i) Jury can be confused with massive charges and information
ii) Could charge more people
b) Can be tried in any venue with any act in furtherance of conspiracy
i) Even a minor act, that’s not criminal, is enough
ii) Inconvenient for Ds and advantage for prosecution (escape reach of 6th amendment)

121
 c) Statute of limitation does not begin until conspiracy achieved or abandoned
i) Conspiracy can last for years, so SOL can last for decades
ii) Tremendous evidentiary and administrative difficulties
d) Complexity of joint trial for all co-conspirators and all their crimes
i) Spill-over effect: everyone starts to look guilty for jury (hard to stay objective)
ii) Everyone is held responsible for total damage/volume/loss involved
(1) Minor actor (less information to offer) can be punished greater than big actor
5) Sentence for conspiracy:
a) Traditional approach: generic offense – punishment unrelated to object offense
i) Federal statute: up to 5 years regardless of object offense
b) MPC: same as target offense except for most serious crime (death, life imprisonment)
i) Same as attempt in MPC
6) Balance the pros and cons
a) Difficulty in cracking the hard shell: the secrecy of conspiracy
b) But conspiracy is really dangerous (procedural consequences, sentence, thought crime)
i) Group is more dangerous than one people. Could accomplish more/more confidence/
Actus reus: agreement b/w 2 + one overt act
1) Actus requirement
a) Agreement by two or more person to commit a crime
b) AND an overt act in furtherance of the conspiracy
2) Perry v. State (Fa. 2014): proof of “agreement”:
a) Fact: parents let Young sleep with their daughter, knowing he was a convicted sex offender,
parents also have sex with Young before, rely on him for financial support, deny that Young
slept with the girl, and lock her with Young. Mother witness Yong assaulting her
b) Charge: conspiracy to commit sexual battery
c) Convicted of accomplice liability
i) AR: aid or encourage Young’s sexual battery (lock the girl with him, deny to police he
slept with girl, knowing what’s going on)
ii) MR: intent to let Young continues his crime b/c relying on him to pay the bill
d) But not guilty of conspiracy (“no enough evidence for agreement and intent to conspire”)
i) Conspiracy requires express or implied agreement—how to prove agreement?
(1) Direct proof is not required (pretty hard b/c people don’t write it down or disclose)
(2) Can be inferred from circumstantial evidence
(a) Evidence must support the parties act together, independent parallel actions are
not enough (but some parallel actions can’t exist without some tacit agreement)
(i) ex. people’s actions would be against their interest were they acting
independently, so there must be some tacit agreement (antitrust case)
(b) Dissent: sufficient evidence to support tacit agreement
(i) Motivation to make an agreement
1. financial dependency, long friendship, sexual relations
(ii) Sets of parallel actions that’s implausible in absence of an agreement

122
 1. Gave identical false information to investigators more than once; know Young
was sexual offender combined with them locking her in; both take no action to
prevent (parent’s legal duty)
ii) Final sentences for all Ds are super high (no need to find conspiracy)
(1) Concern of dangerousness of conspiracy
(a) High sentence for conspiracy (MPC: same as target offense)
(b) Close to a thought crime (tacit, subjective agreement can be enough)
(i) Solution – overt act requirement: any act in furtherance of conspiracy by
any co-conspirator will do
1. Only adopted in some jurisdictions
2. very thin, mere preparatory act is enough, not an effective solution
3. ex. discussion of how to find the victim – enough in most states
a. some state requires “substantial” or “substantial step strongly
corroborative of criminal purpose”
3) United States v. Alvarez (US CoA, 5th Cir., 1981)
a) Facts: Undercover agents go to large drug deal in motel. Once the agents began to descend
on the motel, a shootout begins. One agent killed and others wounded. Two of them, Alvarez
and Simon, who shot the agents, were also convicted of first-degree murder of a federal
agent. Three of the dealers, Portal, Concepcion, and Hernandez (Ds), were convicted of
second-degree murder, though they played no part in the shooting. Fact unclear 3/20 47
b) Charge: 2nd degree murder
c) Hold: Liable.
i) Murder reasonably foreseeable in huge drug deal
(1) carrying large amount of drugs, likely weapons will be used, need to kill people to keep
the drug ring going.
ii) Argument it’s in furtherance of conspiracy – needed to do it to keep enterprise going.
d) Minor Participants
i) Pinkerton doesn’t have to limit who’s liable, major or minor
(1) Sometimes a sentencing matter rather than liability
(2) They were not minor participates.
(3) Even if they were minor, they have knowledge about what is
ii) Minor and big crime—not broadly picked up by courts
(1) Pinkerton doesn’t mention about the liability, they said all people are going to be
liable, even if you are major or minor.
(2) Can place consideration to sentencing rather than a liability situation.
(3) Releasing minor may not be a good idea for the information-forcing tool. Policy
support
(4) However, if holding minors liable, then just like the Pinkerton approach which
requires reasonably foreseeable (negligence), there is another divergence between
consequence and liability level. Policy downside.
(5) It’s hard to differentiate minor and big, it’s hard to manipulation.
iii) Sometimes minor participants not liable – why?

123
 (1) Don’t make less culpable people responsible for higher-ups – but this sort of
unravels Pinky which is all about getting everyone for everyone else’s crimes
iv) Ds minor participants? Not really here
(1) This huge crime, and they had some knowledge of armed nature of deal.
(2) Also their positions:
(a) Lookout, introducing agents to ringleader, translator
v) Hard to draw the line / reign in Pinky
vi) Accomplice
(1) Intentionally helping the drug sale, that’s why this additional crime that concern.
Use Luparello.
4) Pinkerton doctrine does not apply in MPC jurisdictions
5) United States v. Apple, Inc. (US CoA 2nd Cir. 2015)
a) Fact: Apple signed contracts with each major publishers, to sell eBooks on the iPad at prices
as high as $19.99, which led to raised prices on eBooks sold on the Kindle
b) Charge: conspired with the Publisher Defendants to raise price in eBook market. Antitrust
trust violation(§1 of the Sherman Antitrust Act)
c) Holding: Liable
i) a finding of conspiracy requires “evidence that tends to exclude the possibility” that the
defendant was “acting independently.”. .
ii) Apple's proposed contracts were attractive to publishers only if they acted collectively.
iii) Each publisher defendant could profitably agree to Apple’s proposed contract only if it
knew that other major publishers would do so too.
Mens rea: intent to agree and to further the criminal enterprise
1) Mens rea requirement for conspiracy
a) Intent to agree
b) AND Intent to further the criminal enterprise
i) Conduct: purpose that the conduct of target offense occurs
ii) Result: purpose that the result of target offense occurs
iii) Attendance circumstance: at least match MR of target offense
(1) Can be more, depends on the courts
(a) Some thinks only P or K can consist of an agreement and early point of AR
require a higher MR for crucial circumstance element, even if object offense has
a lower one
(2) MPC: open question left to the courts as a deliberate ambiguity
2) People v. Lauria (CA. 1967): knowledge PLUS
a) Fact: prostitute use D’s telephone answering service for prostitute business. D told
undercover police his service is discreet and safe, willing to assist prostitute, kept separate
records for known prostitute. Did not tell police (no duty to tell a misdemeanor)
b) Charge: conspiracy to commit prostitution (misdemeanor)
c) Court ruled D is not guilty
i) Actus rea: no agreement (only contract to take messages, not to commit prostitution)
ii) MR required for conspiracy: intent to further the criminal enterprise = purpose or
knowledge PLUS special interest (for both felony and misdemeanor)

124
 (1) “Intent” can be inferred from knowledge PLUS:
(a) Special interest in the criminal enterprise:
(i) Stake in the criminal venture; or
1. ex. charge higher price for the illegal use
(ii) No legitimate use for the goods or service exists; or
1. ex. service can only be used for illegal purpose
(iii)Disproportionate volume/majority of total sales
(b) Seriousness of target crime – can ignore this one
(i) Misdemeanor is not serious enough.
(ii) Court hinted that felony may be enough. But this is dicta, so felony still
require purpose = K + special interest.
(2) Similar to “advance knowledge + active participation” Rosemond
(3) Also used in accomplice liability in some jurisdiction. Falcone, Posner
(4) Any circumstantial evidence can be used to get to purpose - Lauria gives
touchstones for the analysis of inferring intent.
iii) Here, D know they were using his service for prostitution business, but no PLUS factors
(normal rate, normal volume, legal telephone service, misdemeanor is not serious)
3) Hypo: 3/31 6
a) John agrees to Bob to carry piano from Carrol’s house, falsely believing Carrol give piano to
Bob. But in fact, Bob steal piano from Carrol and lied to John
i) John is not guilty of conspiracy: no intent and no knowledge to further Bob’s theft
ii) Bob is only liable to target offense under innocent agent theory
(1) But not conspiracy, b/c it requires at least 2 people with required MR for conspiracy
(2) No, John doesn’t have the purpose to further the criminal enterprise. John is an
innocent agent, so Bob would be the primary actor. Bob has the required mens rea,
but it takes 2 for conspiracy-so Bob isn’t guilty of conspiracy.
b) John knows Bob intends to steal the piano and agrees to lend Bob his piano dolly for free.
Indifferent as to whether Bob attempts/succeeds
i) No intent to further criminal enterprise
(1) No purpose, has knowledge but no PLUS: piano dolly is not specially designed for
stealing piano (can just use piano dolly to move piano, not stealing it)
ii) No, John doesn’t not have the purpose to further the criminal enterprise. Doesn’t go into
one of Lauria’s categories. If it is a felony, knowledge COULD work from Lauria’s dicta.
c) John knows Bob intends to steal the piano and agrees to rent dolly to Bob. Charged 5 times
of going rate as before when Bob planned to steal fridges/TVs from a warehouse
i) Intent can be inferred knowledge + special interest (stake in venture)
ii) Can infer John’s intent from his knowledge because of his increase in prices (can be
inferred-doesn’t have to be)
Pinkerton doctrine
1) Each co-conspirator may be held liable for all crimes committed by a co-conspirator
a) in furtherance of the conspiracy to commit object crime
b) AND reasonably foreseeable as a natural and probably consequence of the conspiracy
i) Essentially only requires negligence for conspiracy, when normally purpose is required
c) Pinkerton liability is not retroactive:

125
 i) D can’t be liable for offense committed prior to his joining the conspiracy
2) Pinkerton v. United States:
a) Fact: Moonshine case with violations of the IRC. 2 brothers (Daniel & Walter) are charged
with the IRC violation. The 2 brothers agreed to commit moonshine crimes a LONG time
ago. Since then, Daniel went to jail but continued to be charged for Walter’s bootlegging
crimes on conspiracy, even though he’s in jail.) Daniel never withdrew & the crimes haven’t
been completed.
b) Each co-conspirator may be held liable for all crimes committed by a co-conspirator that are
i) In furtherance of the conspiracy, and
ii) Reasonably foreseeable as a necessary or natural consequence of the unlawful
agreement
c) Court ruled Danial is liable to substantive crimes committed by Walter, even if he did not
participate or know about them at all
i) “Conspiracy is still on-going when Walter committed the substantive offenses that’re in
furtherance of their unlawful agreement”
(1) Conspiracy continues until object achieved / abandoned by all co-conspirators
/withdrawal Danial satisfied none of them, so his conspiracy is still on-going
d) Accomplice liability?
i) Difficult to convict, conspiracy is easier w/ Pinkerton doctrine
ii) AR: no aid b/c Danial was in prison. Encouragement is more plausible - maybe their
agreement kept spurring Walter on.
iii) MR: no knowledge of the crime, so no “purpose” required for conduct element of
accomplice liability. But in Luparello jurisdiction, Walter’s crimes can be reasonably
foreseeable (negligence) from their former agreement to commit bootleg
3) Scope of liability:
a) Traditional accomplice < Pinkerton < Luparello
b) Pinkerton vs. Traditional Accomplice Liability
i) In Pinkerton, can be liable even if don’t meet accomplice liability
(1) If only agree with another to commit one offense, but did not aid or encourage
another to commit another offense that’s reasonably foreseeable and in furtherance
of their unlawful agreement
(2) If you don’t intent the primary actor to commit the conduct, you are not
intentionally aid or encourage the crime, maybe no accomplice theory, yet, maybe a
conspiracy if you can reasonably foresee and it’s in furtherance of conspiracy.
ii) Can be accomplice without conspiring
(1) If no agreement of aiding the primary actor, only secretly and intentionally
rendering the aid
c) Pinkerton vs. Luparello
i) Luparello only requires “reasonably foreseeable consequence”
ii) Pinkerton requires “in furtherance of conspiracy” in addition to reasonably foreseeable
consequence
(1) Consequently, Luparello imposes broader liability than Pinkerton
(a) Policy: conspiracy adds on an additional crime
d) Conspiracy vs. Attempt

126
 i) Can be guilty of conspiracy without being guilty of attempt
(1) No need to move beyond mere preparation for conspiracy, as for attempt
ii) Can be guilty of attempt without being guilty of conspiracy
(1) One can attempt to commit a crime by himself, no need to have to 2 people for
attempt, unlike conspiracy
4) State v. Bridges:
a) Fact: D got into fight with another guest at 16 year old’s party. Recruited his friends to
accompany him back to the party with guns & hold back the crowd while he fought the
guest. Someone punched his friends, and they started firing into the crowd. Convicted of
conspiracy of murder.
b) Charge: conspiracy to commit aggravated assault and murder
c) Murder convicted upheld
i) Traditional accomplice liability? Difficult
(1) MR: not satisfied for result element of murder (only recklessness; none of 4 malice
aforethought); murder was not the intended object crime (felonious assault was)
(2) AR: no aid or encouragement of fellows’ shooting (unless providing gun is an aid)
ii) Luparello accomplice liability? Yes
(1) reasonably foreseeable someone will die when they use gun to hold back the crowd
(a) Luparello only require negligence, and D has recklessness here
iii) Pinkerton conspiracy?
(1) Murder is reasonably foreseeable from and in furtherance of their agreement to
commit felonious assault (use gun to hold back young hostile partygoers)
5) Policy behind Pinkerton doctrine:
a) Proponents:
i) Deeper seated policy concerns with conspiracy calling for lower standard
ii) To address the dangerousness of group crimes
(1) More crimes can be committed when more actors involved
(2) Crimes can be more serious with joint effort than single effort
(3) Less likely people will change heart under group pressure and help
iii) Provide more tools for prosecution to solve big and complex conspiracy
(1) Inflict cost on group members who are difficult to apprehend by punishing other
members who are more accessible
(2) Serve as information-forcing tool: take down whole organization by taking down
one minor actor who can face big charge if don’t cooperate
iv) Incentivize criminal groups to monitor and control excessively harmful activities
v) When one joins a group deliberation, he submits her reason to collective will
(1) Require greater attention of cohesion of group and nature of decision making
b) Opponents:
i) Justification for large scale group does not hold for smaller groups
ii) Lose the sense of just proportion of culpability (from MPC)
(1) D can be guilty of thousands of crimes committed by others, for which he was
completely unaware and which he did not influence at all

127
 (2) MPC impose liability on conspirators for substantive crimes of their co-conspirators
only when the element of [traditional] accomplice liability are met
6) Hypo: 3/31 1:20
a) A is the ringleader of conspiracy to rob bank. B, C, D, E know they’re part of a conspiracy to
rob banks, but no contact with one another other than common communication with A. A
tells B and C to rob banks, asked D to steal car and asked E to steal machine gun. B robbed a
bank using car stolen by D. C robbed another bank using gun stolen by E.
i) Pinkerton doctrine:
(1) Everyone is liable for everything—two bank robbery and car/gun thefts (stealing of
gun and car is reasonably foreseeable and furtherance of conspiracy to rob banks)
(a) Illustrate Pinkerton is so much easier to use than traditional accomplice liability
ii) Traditional accomplice liability:
(1) A: liable for everything (intent & encourage B, C, D, E to rob banks & steal car, guns)
(2) D: liable for car theft and B’s bank robbery (intentionally aid B to rob bank by
stealing gun for him to use)
(a) but less clear for C’s bank robbery and E’s gun theft (harder to argue agreement
itself can function as intentional encouragement)
(3) not sure about bcde.
iii) Luparello approach: easier to find B, C, D, E are liable for each other’s crime
(1) reasonably foreseeable there’s other people committing robbery and theft from
common agreement to rob banks
7) Limitation for Pinkerton liability. Alwarez
a) Two limitations:
i) Minor role in the conspiracy
(1) Pro: to align liability with culpability
(2) Con: difficult to decide what constitute “minor”
(a) Thus, few are actually exempt from Pinkerton liability under minor role theory
ii) No knowledge of any circumstances or event leading up to the substantive crime
iii) Developed by courts as possible restraint on the reach of Pinkerton doctrine
(1) Similar restraints: nexus b/w role in conspiracy and illegal conduct of co-
conspirator can’t be so attenuated or remote (Connecticut)
b) United States v. Alvares (1985):
i) Fact: Miami drug “buy” in run down motel with undercover agent being buyers. On the
arrival of $147,000 cocaine, shoot-out started in motel room and one agent was killed
and another was seriously wounded. Drug buy with many actors. Undercover agents
rushed on the drug dealers, causing a shoot-out. 3 men who didn’t participate in the
shoot-out (but did in the drug buy) were convicted for murder on conspiracy.
ii) 3 dealers convicted of 2nd degree-murder, though they did not participate in
shooting(Portal, Concepcion, Hernandez)
(1) Pinkerton doctrine—basis of liability for unintended crimes
(a) Killing was reasonably foreseeable from drug conspiracy (large quantity of
cocaine  must know guns will be carried and used to protect their interest if
necessary)

128
 (b) killing is in furtherance of drug conspiracy (need to kill people to keep thing
going)
(2) They are more than minor participants (court fail to give standard for “minor”)
(a) Portal served as lookout during negotiations leading to shoot-out
(b) Concepcion introduced agents to leader of conspiracy & present when shoot-out
started
(c) Hernandez, the manager of the motel, allow drug transaction on his place and
acted as translator during negotiations leading to the shoot-out
(3) All three had knowledge of some circumstances leading up to the substantive crime
(a) Portal carried weapon, so he anticipates possible use of deadly force
(b) Both Conception and Hernandez was present when the leader said he would
rather die than go back to prison, so they also know deadly force might be used
to prevent apprehension of Federal agents
(4) Limit liability
(a) They were not minor participates.
(b) Even if they were minor, they have knowledge about what is going on, so they
know what’s going to happen. Pinkerton doesn’t care about minor.
(5) Minor and big crime—not broadly picked up by courts
(a) Pinkerton doesn’t mention about the liability, they said all people are going to be
liable, even if you are major or minor.
(b) Can place consideration to sentencing rather than a liability situation.
(c) Releasing minor may not be a good idea for the information-forcing tool. Policy
support
(d) However, if holding minors liable, then just like the Pinkerton approach which
requires reasonably foreseeable (negligence), there is another divergence
between consequence and liability level. Policy downside.
(e) It’s hard to differentiate minor and big, it’s hard to manipulation.
(6)
(7)
(8) Minor v. Major Actors
(a) Applies for sentencing guidelines & usually isn’t very popular because it’s hard
to apply & subject to manipulation
(9) Traditional accomplice theory: would need to have malice aforethought
(10) Luparello theory: reasonably foreseeable outcome

The Duration of Conspiracy

1) Termination:
a) Conspiracy continues until its object achieved OR object abandoned by all conspirators
i) Abandonment: none of the conspirators is engaging in any action to further the
objective of conspiracy
ii) conspiracy can continue long after initial agreement made, or some members cease to
participate in the activities

129
 iii) Police’s frustration of the objective of conspiracy does not terminate conspiracy
(1) Jimenez Recio: even if conspirators are impossible to achieve their object after
police’s seizure of drugs, conspiracy is still on-going unless conspirators abandon it
themselves
b) Not liable for crimes committed after termination of conspiracy and may not be liable for
conspiracy if SOL has run (SOL begins when conspiracy terminates)
i) So D will try to shorten the period of conspiracy and prosecution will try to extent it
2) Withdrawal:
a) Directly and unambiguously communicate his withdrawal to his co-conspirators
i) = affirmative acts inconsistent with the object of the conspiracy, communicated in a
manner reasonably calculated to reach co-conspirators. U.S. v. U.S. Gypsum
ii) Requires more than implied dissociation; must be sufficiently clear and delivered to
those with authority in in the conspiracy. US. v. Randall
b) OR disclose the conspiracy to law enforcement authorities
c) Not liable for crimes committed after the withdrawal, but still liable for conspiracy
d) = MPC 5.03(7)
3) Renunciation defense:
a) The circumstance manifest complete and voluntary renunciation of his criminal purpose
i) Not voluntary if motivated in whole or part by circumstance, not present or apparent at
inception of actor’s course of conduct, which increase the probability of detection or
apprehension (ex. victim fighting back; police being present) OR make more difficult the
accomplishment of the criminal purpose
ii) Not complete if motivated by decision to postpone a criminal conduct until more
advantageous time OR to transfer the criminal effort to anther but similar objective or
victim
b) AND the actor succeeds in preventing commission of the criminal objective
c) Complete defense: not liable for crimes committed after renunciation and not liable
conspiracy itself
d) MPC 5.03(6)
5.03(6) Renunciation of criminal purpose.

The Scope of Conspiracy

1) Multiple Conspiracies vs. Single Conspiracy:
a) Substantive effects:
i) A single conspiracy makes all actors liable for all crimes under Pinkertons doctrine; in
multiple conspiracy one is liable for fewer crimes based on only his conspiracy
b) Procedural effects:
i) SOL can be greatly extended since a single conspiracy can include more actors
ii) More evidence (even hearsay) from more co-conspirators is admissible to commit each
one of them in a single conspiracy
iii) Only one person has to do the overt act, so it’s easier to prove
iv) More efficient trial, venue expanded on basis of any of the defendants

130
 c) Thus, the prosecution always argues for single conspiracy, while defendants always argue
for multiple conspiracies (the more, the better)
2) Test for single conspiracy:
a) There must be a single agreement (express or tacit) encompassing everyone, which can be
inferred from circumstantial evidence of:
i) Parallel actions that unlikely occur without some sort of agreement
ii) Sequential conducts: everything falling into the right place at the right time
iii) Collective venture of common goal – motive to act in concert
(1) ex. interest in other groups’ success
(2) Do they want more people to join / fewer people to avoid getting caught?
iv) Interest in the success of continuing business
(1) On-going, long-term relationship, not one-time transactions
(2) ex. continued willingness of each member to perform his function, b/c each depends
on the success of others
(3) ex. common figure will fail without enough customers & he’s the only fence in town
v) Knowledge that common figure also connects with other groups
(1) Not enough in itself: “Thieves who dispose of their loot to s single receiver—a
single “fence”—do not by that fact along become confederates; they may, but it takes
more than knowledge that he is a fence to make them such”. Kotteakos
3) Bilateral approach:
a) View conspiracy as a bilateral relationship b/w each party congruent in scope both as to its
parties and its objective dimensions
b) Kotteakos v. United States (US. 1946): wheel conspiracy
i) Fact: Simon Brown obtains fake homes loans and transacts as a broker with different
groups of Ds. No connection shown b/w different groups of Ds, other than their
common connection with Brown.
(1) (Indictment of 32 defendants. Ringleader Brown was helping them get fraudulent
housing loans with a kickback. Individuals only had a connection to Brown, not the
other loan receivers. Prosecution tried to argue this was 1 conspiracy.)
ii) MULTIPLE CONSPIRACIES IF NO CONNECTION BETWEEN THE SPOKES
(1) There was multiple conspiracies, because there was nothing present showing there
was any connection/common objective between the “spokes”
(2) Hub-spoke relationship without a rim to complete the wheel
iii) Like thieves who dispose of their loot to a fence-they don’t automatically become
confederates by communicating with Brown
(1) Takes more than knowledge
(a) Vs 前面一个 case says knowledge of the
essentials of the conspiracy is enough to
infer an agreement. 4/16 34
iv) No ongoing relationship between Brown & loan
receivers
(1) They get the loan and move on ; loans are a
one time thing

131
 v) Conspiracy ends once it is achieved (statute of limitations starts when they get the loan)
vi) Brown-liability is 8 counts of conspiracy and primary actor as target offense
vii) Each spoke is liable for 1 conspiracy count and for target offense as accomplices
viii) Signs of having one conspiracy
(1) 1 agreement
(2) Common purpose with everyone relying on each other
(3) Interest in other member’s successes
(4) Common/parallel action that is improbable to have occurred without some sort of
understanding
(a) Common objective
(5) Ongoing long term relationship where crimes/overt acts keep occurring
(6) Interdependence-if one fails all of it will collapse
ix) Gov’t admits they are multiple conspiracies (spokes) around common figure Brown
(1) Wheel metaphor: “pattern was that of separate spokes meeting at a common center,
without the rim of the wheel to enclose the spokes”
(a) Each group has no interest in success of other groups
(b) Each loan is one-time transaction with Brown (not on-going relationship)
x) But the jury instruction permits jury to find a single conspiracy, leading to prejudice
against the Ds from evidentiary and substantive standpoints – reversed
c) Anderson v. Superior Court: minority rules :
i) Fact: D is one of referrals of abortionist Stern. D knew Stern was engaged in abortion as
regular business, and others have conspired with him to further operations
(1) Page 787 (Woman is conspiring with others to refer women to a doctor who does
abortions. She gets kickbacks. She knows there’s other people referring, but doesn’t
know who they are.)
ii) ONE CONSPIRACY IF CONNECTION & INTERDEPENDANCE
(1) Probable defendant knew she wasn’t the only referral & had interest in success of
conspiracy (got paid)
(a) Ongoing into the future
(2) There was a single conspiracy
(a) Defendants are liable for all of the abortions from all of the referrals, not just
theirs
(3) Indictment as a single conspiracy because she was relying on others in conjunction
(a) More referrals=more customers
(b) Ongoing & crimes keep occurring
iii) Court ruled a single conspiracy
(1) Infers “knowledge of other referrals” is enough to be rim of wheel
(a) Knowing v. joining
(2) Conflict with Kotteakos (= real rule): mere knowledge is not enough, must have
something else to infer express/tacit agreement among everyone
(a) May have “rim” under Kotteakos, b/c D has interest for Stern’s business to
continue into future; and other referrals help with that
iv) Under a single conspiracy, D is liable for every abortion referred by her & others

132
 (1) Greatly expanded the scope of liability
(2) Would multiply the substantive consequences, substantive offenses, and you'd also
have all the procedural effects that might affect the individual defendant.
e) United States v. Bruno (2nd Cir. 1939): chain conspiracy
i) Fact: narcotic import-possess-sell scheme involving 86 people. There are 4 groups
involved: smugglers (importers) who sell to middleman who then separately distribute
to retailers in NY and TX (no connection b/w NY and TX retailers)
(1) No direct communication between smugglers/retailers or between retailer. Charged
for single conspiracy.
ii) Court ruled a single conspiracy
(1) The conspiracy is so inter-connected, each depending for his own success on the
performance of all the others
(a) = long-term, ongoing scheme depending on success of each party in the chain
(i) Each part was contingent on the success of other parts (all interdependent)
(ii) Ongoing long-term business
(iii)Knowledge & awareness of other levels can lead to a tacit agreement
1. Venture where each was a participant
(2) Chain metaphor: each end of chain knew the drugs will go through the chain even if
they did not know exactly to or from whom
(a) But can still be 2 conspiracies b/c NY and TX retailers are not in privity
(i) Still one conspiracy, b/c the retailers need other retailers to sell more
conveniently (“two salesmen in the same shop”)
iii) Under a single conspiracy, each of 86 people is liable for conspiracy to import, sell and
possess, and all crimes reasonably foreseeable and in furtherance of the conspiracy
(1) Everyone is guilty for everyone else-in furtherance & reasonably foreseeable stuff
outside conspiracy
iv) Ds argue there’s 2-3 conspiracies
(1) Smuggler would want as many conspiracies as possible
(2) Could argue competition between retailers → 2 conspiracy (TX chain v. NY chain)
(a) If we know more about the economic between the enterprise.
(b) But also might be not competitions
(3) Argue 3 conspiracy → smugglers-middlemen/M-TX/M-NY
v) If you find one conspiracy from the perspective of anyone, then it is one conspiracy for
everyone (traditional approach)
vi) Problems of chain metaphor. Borelli
(1) Links at either end can consists of groups of people who had no reason to know
others are performing similar roles to theirs
(2) Over a long period of time, certain links continue to play same roles but with new
counterparts
9) Unilateral approach (MPC):
a) § 5.03(1) Focus on the agreement from perspective of individual actor.
A person is guilty of conspiracy with another person to commit a crime if with purpose
he:

133
 1. Agrees with a person that they will engage in conduct that constitutes such crime
or
2. Agrees to aid the other person in planning or commission
i) Focuses on 1 person’s culpability over the conduct of the group & agreements actor
thought he was in
(1) Attention on each individual’s culpability, not group culpability
(a) Look to conducts suffice to establish liability of a giving actor, rather than the
conduct of a group of which he’s charged to be a party
(2) Each actor's liability is decided from his own perspective
(a) ex. smuggler's liability from smugglers' perspective
(3) Different actor can be liable to different number of conspiracies
ii) Enough if there’s agreement from one individual perspective of 1 party
b) Limit to crimes that D has purpose of promoting or facilitating (criminal objective)
c) Limit parties to those whom he agreed, except when he knows the same crime he conspired
to commit is also the object of a conspiracy b/w one of his co-conspirators and another
person or persons. MPC 5.03(2)
d) Applying to Bruno:
(1) Smugglers’ perspective: likely a single conspiracy
(a) Smugglers may not know/care what middlemen do with the drugs they bought
(b) But they depend upon and seek to foster the whole retail market to sustain their
smuggling business in the long-term
(2) Retailers’ perspective: likely only conspired with middlemen
(a) With other retailers? Unclear
(i) They need other retailers to sell more conveniently/other retailers can be
necessary for the shop to exist
(ii) But they may not know other retailers nor want competitors to succeed
(b) With smugglers? Like no
(i) Retailers need someone to smuggle drugs for them to sell
(ii) But may have many suppliers & indifferent to success of a single source
e) United States v. McDermott (2001): insider trading rules :
i) Fact: D McDermott provided stock tips to his lover Gannon, who then told her lover
Pomponio. D did not know Pomponio nor his relationship with Gannon. Only
circumstantial evidence linking D and Gannon’s telephone records to Gannon and
Pomponio’s trading records
(1) (D McDermott was president of an investment bank & having affair with a prostitute
Gannon. He gave her a lot of stock tips, who she told to her other client, Poponio.
They made $170,000 off these tips. Defendant charged for conspiracy of insider
trading with prostitute & Poponio)
ii) Charge: single conspiracy to commit insider trading
iii) Bilateral approach: court ruled NOT a single conspiracy among all 3 co-defendants, so
neither of 3 can be liable for a single conspiracy
(1) A single conspiracy can only be inferred from:
(a) Scope of original agreement is broad enough to include other persons
(i) Not here, insider trading D unlikely want info to passed along to others

134
 (b) Reasonably foreseeable that other people will be involved
(i) Not here, insider trading D unlikely want info to passed along to others
(c) Knowledge of the relationship b/w the person he agreed to and other persons
(i) Not here, otherwise D will act differently (ex. dump his betrayed lover)
iv) Unilateral approach: different results for different actors
(1) D’s perspective: he only conspired with Gannon
(2) Gannon’s perspective: conspired with both D and Pomponio (a single conspiracy)
(a) Prostitute in 2 conspiracies
(3) Pomponio’s perspective: he conspired with both D and Gannon (a single conspiracy)
(a) He knows D was the source of tip
(b) Even if he doesn’t know, he has continuing interest in the venture
(c) MPC: if you know that a person with whom you conspire knows that a person
including conspired to commit a crime has conspired with another person to
commit the same crime, then your security and even that other person.
(d) What Bilateral/unilateral approach?
2) Multiple objectives:
a) Braverman rule: whether a single agreement consists of a single or multiple objectives,
there can still be one conspiracy.
b) Albernaz rule: if there are separative statutes proscribing conspiracies for different crimes,
there can be multiple conspiracy for multiple objectives in single agreement
c) MPC: conspiracy is a single one despite multiple criminal objectives, as long as such crimes
are the object of the same agreement or continuous conspiratorial relationship
Parties: when one of 2 parties is immune
1) When one of 2 parties feigned agreement:
a) Bilateral approach: the other party is NOT liable for conspiracy, b/c an agreement
requires at least 2 people under this traditional approach
i) Opponents:
(1) Prevent police intervention: can never convict a conspiracy by sting operation. We
don’t want the crime to have to actually happen or get too close (attempt)
ii) Gebardi v. United States- woman transportation -TRADITIONAL BILATERAL
APPROACH
(1) Fact: (Petitioners indicted for conspiring together to transport the woman from one
state to another for the purpose of having sex with the man. No conspiracy because
one person doesn’t have the criminal intent.)
(2) IF YOU’RE THE VICTIM, CANNOT BE GUILTY WHICH REMOVES CULPABILITY
UNDER THE BILATERAL APPROACH
(3) Neither guilty because no matching criminal intent under bilateral approach
(a) A person cannot be convicted of conspiracy when there is a recognized rule or
policy exempting him from prosecution under the offense→Woman cannot be
guilty of substantive offense
(i) Cannot be accomplice if the victim
(b) Wharton’s rule doesn’t apply because taking of the woman could be
nonconsesual

135
 (4) The man took a woman & she was really okay with it and consenting, are they still
violating the act?
(5) The woman is not guilty of the statute or conspiracy because there is legislative
intent to leave her acceptance unpunished
(6) Bilateral approach: Cannot have conspiracy charges against the woman or man
because no unlawful activity
(a) Accomplice liability wouldn’t work because the woman is the victim & won’t be
held liable as an accomplice
(b) If you’re the victim because the statute to protect you, you won’t be held liable
for the statute as yourselfSame with statutory rape-can’t be held as an
accomplice to statutory rape if you’re the one raped
(i) Liability of the primary actor for the man
(7) Unilateral approach: liability for the man
(8) Wharton’s Rule: doesn’t apply here because it’s not impossible for the person to
engage in this activity voluntarily
(a) In the Mann act can engage voluntarily
iii) Wharton’s Rule: where it is impossible under any circumstances to commit the
substantive offense without cooperative action, the preliminary agreement between the
same parties to commit the offense is not an indictable conspiracy
(1) For adultery, bigamy, incest, dueling, gambling, bribes, selling contraband goods
(2) If it MUST take two the preliminary agreement is not indictable
(3) MPC rejects this
b) Unilateral approach: the other party is still liable for conspiracy, b/c each party’s liability
is decided from his own perspective/culpability
i) Garcia v. State:
(1) Fact: D agreed with a police informant (who only feigned his acquiescence) to kill
her husband and got arrested.
(2) Charge: conspiracy to commit murder
(3) Convicted under unilateral approach (MPC)
(a) From D’s perspective, she conspired with police informant (“culpable party’s
guilt is not affected by whether the other party feigned his agreement”
ii) Opponents:
(1) Crime will never happen with feigning agreement, no danger of any crime that
conspiracy liability is designed to avoid
(a) Conflicts with utilitarian idea. Way more a fault approach than threat approach.
(2) Concern of entrapment issue: gov’t may manufacture conspiracies
(3) Lack of group action/criminality that’s in the heart of conspiracy
2) When one of 2 parties is victim:
a) Gebardi Rule: a person cannot be convicted of conspiracy when there is a recognized rule
or policy exempting him from prosecution from substantive crime
b) Wharton Rule: where it is impossible under any circumstances to commit the substantive
offense without cooperative action, the preliminary agreement between the same parties to
commit the offense is not an indictable conspiracy

136
 i) ex. adultery, bigamy, incest, dueling, gambling, bribery, selling contraband goods”
ii) Rejected by MPC: it complete overlook function of conspiracy as inchoate crime, operate
to immunize both parties form conspiracy of such crime
c) Gebardi v. United States (US. 1932): woman transportation :
i) Fact: man and woman charged under conspiracy to violate the Mann Act (illegal for a
man to transport her across state lines for immoral purposes, with or without woman’s
consent)
ii) Woman can’t be guilty of Mann Act
(1) Legislative intent: Mann Act only condemn “man transporting women,” does not
condemn woman’s
(2) Wharton rule does not apply b/c criminal transportation under the Mann Act may
be affected without the women’s consent
(3) Attempt? As a victim that law tries to protect, she can’t be guilty of attempt
(a) Like a victim can’t be liable for statutory rape on accomplice theory
iii) Woman also can’t be guilty of conspiracy
(1) woman cannot be guilty of the substantive offense, so it defies legislative intent to
hold her guilty of conspiring to commit that crime
iv) Man can’t be guilty of conspiracy
(1) woman is not guilty and he did not conspire with anyone else
(2) Cf. unilateral approach (MPC): man is guilty of conspiracy even if woman is not
3) When one conspirator is acquitted:
a) General trend allows a co-conspirator to be convicted even if all others have been acquitted.
Commonwealth v. Campbell
4) Attempted conspiracy?
a) Most courts think there’s no attempted conspiracy (also bilateral and MPC)
i) Attempt and conspiracy are both inchoate offenses, can’t stack two inchoate offenses
b) Some courts accept crime of attempted conspiracy
i) Just as some court accepted attempted aggravated assault

Justification
Self-defense
General rule
1) If you reasonable believe you are facing
a) Imminent
b) unlawful
c) physical force against you,
2) then you can respond with
a) the level of force that you reasonably believe is necessary to protect yourself
i) “Necessity” (the key of self-defense): does not have to be completely objectively
necessary, subjective factors are taken into account
(1) Can use somewhat excessive non-deadly force against non-deadly force, as long as
not crossing the line to become deadly force

137
 (2) Deadly force can be only used against deadly force
(a) You reasonably believe that its use is
(i) Necessary
(ii) To protect yourself
(iii)From imminent death or great bodily harm
ii) Protect yourself, not other purpose.
3) Reasonable belief:
a) Majority approach: an objectively reasonable belief based on D’s situation he subjectively
believed him to be. Goetz
i) What kinds of “D’s situation” are taken into account? Goetz
(1) Physical movements of potential assailant
(2) Relevant knowledge D had about the person
(3) Physical attributes of all people involved, including D
(4) Prior experience D had to provide a reasonable basis for his belief that aggressors
were to injury or rob him, or deadly force is necessary
ii) Similar to MPC’s EED: deliberately ambiguous on how many subjective details are
included in “D’s situation”
(1) Outside factors are more included than inside factors
(a) personal handicaps & some external circumstances (ex. blindness, shock from
traumatic injury, extreme grief) are included
(b) idiosyncratic moral values/temperament are not
iii) Policy:
(1) If wholly subjective, then allow exoneration for aberrational or bizarre thought
patterns; if wholly objective, then unrealistically demanded detached reflection in
great fear/danger – should balance the two components
b) MPC approach: subjective belief is enough
i) if belief was mistaken  elemental defense if negatives required MR of the offense
(1) ex. if belief was R/N formed, D can only be convicted of involuntary manslaughter
(R/N homicide), instead of murder
c) People v. Goetz (NY. 1986): NY subway rob
i) Can frame the facts in the way you want
(1) Prosecution: D used a deadly weapon against men who asked for 5$ w/
screwdriver; shot in a systematic manner and shooting one inactive victim twice to
make sure he’s wounded; told police “I intend to murder;” has successfully warded
off assailants by displaying the pistol before; may acted out of racial bias; and fled
from the scene.
(2) Defense: NY subway are dangerous; D has been robbed twice, outnumbered,
trapped and surrounded by 4 strong black men in subway, had a fear of being
maimed and gone out of control. D only saw a screwdriver but there could be gun in
their pocket. D turned himself in after fleeing.
ii) Charge: four counts of attempted murder – acquitted
iii) Jury did not even get to self-defense; they think D did not have intent to kill (even if D
says that he intends to murder)

138
Special rules
1) Deadly Force Rule
a) Deadly force can be used if D reasonably believe that its use is
(1) Necessary
(2) to protect himself
(3) from imminent death OR great bodily harm
(4) “Imminent”: immediate danger such as that must be instantly met, such as cannot
be guarded against by calling for assistance of other or the protection of the law.
State v. Norman (Citing Black Law. Dictionary)
(a) MPC always focus on the level of culpability. MPC reduce the charge to that level
of culpability, make it down to negligent homicide, but in normal structure,
would be ordinary structures for homicides. 4/13 19
(5) “Deadly force” MPC 3.11(2) deadly force means force which the actor uses…
(a) force with the purpose of causing cause death or serious bodily harm
(b) OR he knows will create a substantial risk of death or serious bodily harm
(i) “Serious bodily harm” = creates a substantial risk of death/causes serious,
permanent disfigurement /protracted loss or impairment of the function the
function of any bodily member or organ MPC 2.10(3)
(ii) ex. shooting in direction of another person is always “deadly force”
ii) Loopholes:
(1) Can’t use deadly force against non-deadly force, even if it’s the only way to protect
yourself. Norman
(2) Can’t use deadly force now against force that only come in the future. Norman
b) Some courts allow “deadly force” for threat of kidnapping/rape/robbery. MPC, Goetz
c) State v. Norman (NC. 1989): imminency
i) Fact: D was badly abused by her husband for 25 years (frequently punched, kicked,
throw objects, burned her with cigarettes, forced her into prostitution and eat pet food
from bowl on the floor). Police could not help b/c he was too afraid to file compliant. D
was beaten the day before and next morning, crept out of house, send her babies to
mother’s home and shot her sleeping husband in back of head. The gun jammed, she
fixed and shot again and another two more when he was still moving.
ii) Not entitled to instruction of either perfect/imperfect self-defense
iii) Perfect self-defense: reasonably believed it’s necessary in the circumstance to use
deadly force to save herself from imminent death/great bodily harm
(1) Imminency requirement: reasonable belief of imminent threat
(a) No evidence of reasonably believed “imminent” threat
(i) Husband was sleeping, no action underway, D had ample times for other
means to prevent future abuse
(ii) indefinite fear of killing by sleeping husband at some times in the future is
not a belief of imminent threat at the time of killing
1. Even if D will be killed the next time and this is her only chance to escape
(window of opportunity), she still can’t kill b/c there’s no imminent
threat at the moment –only allows for opportunistic killing

139
 (b) Imminency vs. necessity:
(i) Uphold necessity theme: it’s not necessary to use deadly force if threat is not
imminent
(ii) Separate from necessity: deadly force can be necessary for a battered wife
even if there’s no imminent threat from husband
1. Some recent adjustments (ex. MPC) connect imminency more with
necessity but still requires it to be “at the present moment”
(c) Reasonable belief of imminency:
(i) The effect of “long history of abuse” depends on we assess it (can use it to
argue there is/no imminent threat of death)
(ii) Battered wife syndrome is subjective and hard to objectively reasonable—
we tend not to take into account too many subjective factors in considering
“reasonableness”
iv) Use of deadly force is only permissible if it is necessary to protect yourself from other
imminent deadly force/Serious bodily harm
(1) Even if deadly force is the only way to escape the harm coming in the future cannot
use it
(2) Cannot use deadly force against non-deadly force even if it is the only way to make
yourself safe
v) Battered spouse syndrome: Constant imminent threat & a necessity to act immediately
to avoid eventual death
(1) BUT, he hasn’t killed her yet. It is likely that all of these are empty attempts
vi) She couldn’t even get an instruction on imperfect self defense because no proof she
believed force was imminent
vii) How should battered spouse syndrome/history of abuse be factored in?
(1) History of abuse: Impact on how Normal evaluates & views her worldHer belief
(2) Question of whether the syndrome/history should be evaluated as a reasonable
person with battered spouse syndrome instead of just a reasonable person
(3) But that could really open it up to a very subjective test-need limits of what to
include
viii) Emotional disturbance standard? 809?28:41
ix) Imperfect self-defense:
(1) D honestly but unreasonably believes force is necessary to protect her from
imminent threat to her life
(a) A partial defense that converts murder to voluntary manslaughter
(2) Court think D did not even actually believe use of deadly force against her was
imminent
2) Duty to retreat
a) You have a DUTY TO RETREAT
i) Before using deadly force → No duty to retreat for use of moderate force
ii) If you know you can do so (retreat) in complete safety
iii) Except that you are not required to retreat from your home → The Castle Doctrine
Exception

140
 (1) Because the home is your ultimate security & retreat
(2) Unclear boundaries → What about patio, backyard, porch, driveway?
(a) The further from the physical structure/walls of the home the less likely the
castle doctrine will be upheld
b) Minority rule, only with deadly force (MPC also accept), majority rule is “no duty to
retreat”/stand your ground
i) Historical justification → True Man Rule: not manly to run in the face of violence
ii) Justifications of No duty to retreat: Good people make good decisions, more difficult to
retreat from guns, Utilitarian-deters violence if aggressors know victims can shoot back
c) No duty to retreat if responding to deadly force with un-deadly force
i) Not about the force you face, but the force you use
d) One has a duty to retreat Abbott
i) Before using deadly force
(1) only about whether he use deadly force, not whether he face deadly force
(a) If will not use deadly force no duty to retreat facing deadly force or not
(i) In that case, can stand your ground & estimate necessity of how much non-
deadly force should be used
(ii) allow moderate force, even if can easily get away without using any force
(2) Retreat only comes into play if trying to use deadly force (purpose to cause or know
of substantial risk of causing death or seriously bodily harm)
ii) If he knows he can retreat in complete safety
(1) Only require retreat if in “complete safety”: don’t need to risk injury by retreating,
even if can escape with less than serious bodily harm
(2) Difficult to decide whether D knew he could retreat with complete safety
(a) Inquiry of total circumstance including attendant excitement
(b) D can always argue he did not think he can retreat in complete safety
iii) Except not required to retreat from an intruder in your home home (castile exception)
(Strong: not from Abbott, but in reading)
(1) Universally applied in retreat jurisdictions
(2) Boundary of “home”: normally only include house and porch
(a) further from physical structure, less likely to be at “home” (issue about car)
(3) for guest: most courts don’t’ require retreat and permit killing in self-defense
(4) for co-occupants (family member): split of courts, but most don’t require retreat
e) Departure from general rule of self-defense
i) In general rule, deadly force is seen as necessary against deadly force, so ok to use it
ii) But retreat rule forbids you from using deadly force against deadly force if can retreat in
complete safety
f) Texas PC §9.32
i) (c) a person who has a right to be present at the location where the deadly force is used,
who has not provoked the person against whom the deadly force is used, and who is not
engaged in criminal activity at the time the deadly force is used is not required to
retreat before using deadly force as described by this section.

141
 ii) (d) for purposes of Subsection (a)(2), in determining whether an actor described by
Subsection s reasonably believed that the use of deadly force was necessary, a finder of
fact may not consider whether the actor failed to retreat.
g) State v. Abbott (NJ. 1961): driveway fight
i) Fact: D shared common driveway with neighbors Scaranos. D put up a concrete border
in his common driveway “so his door wouldn’t go to their side”. Neighbor’s son Nicholas
got SUPER mad and they got into a fist fight. Nicholas starts the fight (aggressor, jury
didn’t say the specific reason but it’s reasonable), although D made first punch, kocked
Nicholas to the ground. Dad came out with a hatchet that he never intends to use as
weapon, mom with carving knife and large fork. D wrested hatchet from neighbors. All 3
Scaranos ends up injured by hatchet during a struggle over the hatchet, and Nicholas get
hit most seriously, got a sever head injury.
ii) Charge: atrocious assault and battery
iii) Revered for ambiguous and confusing instruction on “retreat”
iv) RETREAT IS NECESSARY FOR DEADLY FORCE IF THE ACTOR KNOWS HE CAN AVOID
DEADLY FORCE W/COMPLETE SAFETY BY RETREAT
(1) Retreat is necessary if the actor knows he can avoid the necessity of deadly force
with complete safety by retreating
(a) Not required for moderate force
(2) Defendant had no duty to retreat in fist fight with son, but may have with the
mother/father
(3) Retreat is only necessary if the actor knows he can AVOID the necessity of deadly
force by retreating with complete safety
(a) If he responded to the mother/father with punching, that would’ve been fine
because that is not deadly force
h) Hypo:
i) if Nicholas came at D with fist up, does D has duty to retreat?
(1) No, duty to retreat is only trigged with using of deadly force. D still can use non-
deadly force against non-deadly force (fist) without duty to retreat
ii) What if Michael came up with the hatchet raised?
(1) Depends on how kind of force D plans to respond.
(a) If plan to use deadly force  retreat.
(b) If plan to kick the hatchet out (non-deadly force)  no duty to retreat.
iii) If D could have safety retreated when Michael come at him with hatchet, but did not and
instead punch Michael with his fist, causing him to fall, hitting his head and dead
(1) No duty to retreat, b/c D did not use deadly force (a punch is not intended or known
to create substantial risk of death/GBH)
iv) If D had retreated to his porch where he had a triple-lock front door, but didn’t go inside
and instead grabbed a shotgun and shot Michael
(1) Porch is often thought as part of “home,” no duty to retreat from home (castle rule)
i) Policy:
i) Proponents:
(1) No necessity to use deadly force for self-defense if one can avoid harm by retreat
(2) Reduce overall homicide rate and unnecessary killings
(3) No-retreat rule increase vigilantism and fatal mistake based on racial suspicion
ii) Opponents

142
 (1) “True man” rule: true man holds his ground; should not demand cowardice
(2) No-treat rules can deter initial aggression; should help victim, not criminals
(a) But empirically not deter violent crimes and can increase homicide
3) What level of force is justifiable?
a) HEPO- Strong shoves you and keeps walking up to you to shove you more. You pull out a
machine gun. Strong has a knife and throws it a you just in time before you pull the trigger.
You die & Strong is charged with murder. Can he use a self defense claim?
i) Yes-pulling out the machine gun was deadly & excessive
ii) If responsive force, you can respond up to the level
iii) Machine gun was unlawful force so ok to throw the knife
iv) Can use excessive force if it is non-deadly & necessary-here it was deadly & unnecessary
(machine gun)
4) First aggressor rule:
a) The aggressor in a conflict culminating in death has no right of self-defense Peterson
i) UNLESS he
(1) communicates to the adversary an intent to withdraw
(2) AND make a good faith attempt to withdraw. (in words or actions)
(a) Unlike retreat rule, not consider whether can retreat in complete safety
(b) Even at great personal risk. Doesn’t matter if you don't know you can withdraw
in complete safety.
b) Aggressor = affirmative unlawful act reasonably calculated to produce an affray foreboding
injurious or fatal consequences. Peterson
i) = incite the fatal attack, encourage a fatal quarrel, or otherwise promote the necessitous
occasions for taking of life
ii) Consequence: no right of self-defense, unless communicates to the adversary an intent
to withdraw AND make a good faith attempt to withdraw.
c) Argue: is he the first aggressor, then trying to withdraw,
d) United States v. Peterson (1973): changing identify of first aggressor
i) Fact: Keitt drive to rear of D, Peterson’s house to steal windshield wiper. D came out of
house to protect, went back to house after some words, obtained a gun and returned to
yard. In the meantime, Keitt reseated in his car and about to leave. D standing slightly
inside a gate of yard, loaded his gun, threatened to kill, Keitt came at him with a tire iron
and D shot Keitt approaching with lug wrench at 10 feet away, killing Keitt
ii) Charge: 2nd degree murder – jury convict manslaughter
iii) The first aggressor cannot use deadly force in self-defense
(1) Only wholly innocent parties can use homicidal self defense
(2) Provoker: one who creates a self-generated necessity to kill & unlawful act with
injurious consequences
iv) Affirmed instruction of first aggressor to jury
(1) Keitt was the first aggressor with the larceny by coming to take D’s windshield
wipers
(2) But when Keitt reseated in his car and about to leave, he’s no longer an aggressor
(a) getting in his car to leave = indication of withdrawl

143
 (3) D becomes the next aggressor when he reappeared from house (place of safety)
with his gun, commands Keitt “not to move” with loaded gun, dared Keitt to come in
and threatened to kill if Keitt moves.
(a) Citizens arrest? Peterson’s actions aren’t unlawful, but they don’t have to be
(4) Peterson faced deadly force (tire iron), but this wasn’t as deadly as a gun
(a) Peterson could not use deadly force because he’s the first aggressor (not even
against excessive force)
e) Laney—Mob case, man attacked by the mov who escaped into yard but then returned to the
street
i) D was chased along the street by a mob threatening his life, managed to escape though
areaway into a barky ward (reach place of safety, could have gone home), but D
adjusted his gun and stepped out areaway (become an aggressor and lose privilege of
self-defense b/c his presence there would provoke trouble) to exchange fires with mob
and killed a mob member.
f) Hypo:
i) S comes up, swinging his fists. You are backed into corner, jumped behind and put S into
a deadlock (not a deadly force). S cannot get away the deadlock, so he stomps foot really
hard with cowboy boot. Do you have self-defense claim?
(1) You have self-defense claim for your deadlock
(a) Have privilege of SD b/c you are not the first aggressor (S provokes first)
(b) Do not have duty to retreat b/c he’s not using deadly force
(c) & Meets general rule of self-defense (use non-deadly force against non-deadly
force)
ii) What if S shoves out of the deadlock and keeps coming at you with fists. You pull out an
uzi (deadly force) and begins firing in S’s direction in methodical pattern from left to
right. At the moment, S had a knife in the sheath behind his neck and throw accurately
into B’s heart, instantly killing B. Who has SD?
(1) You have NO self-defense claim
(a) have privilege of self-defense b/c he’s not the first aggressor (S provokes first)
(b) But you fail general test of self-defense by using deadly force (uzi) against non-
deadly force (fist), which is not reasonably believed to be necessary
(c) & you may violate his duty to retreat before using deadly force if can retreat in
complete safety
(2) S has NO self-defense claim
(a) S is the first aggressor and made no good attempt to withdraw
iii) Someone boos your favorite sports team, so you slap him in the face with heat in the
moment. Before you get a chance to do so, He punches you back. Can you punch back in
self-defense? (for self-defense question, step by step, see who have what right at the
point)
(1) No right of self-defense,
(a) You initial the force, he responsive force with a more aggressive.
(i) But b/c you are the first aggressor and did not make good-faith attempt to
withdraw, no right of self-defense

144
 (b) Then your reaction, if you reasonably believes it's necessary to prevent the
imminent use of unlawful force against them they can use that level of force. But
his responsive is lawful
(i) But same result even without “first aggressor rule”: general rule does not
allow response to lawful force either, only to unlawful force (punch on you
was reasonably necessary/not disproportionate, so is self-defense and not
unlawful)
(2) You initial the force, he responsive force with a more aggressive.
iv) What if the person pulls out a knife after you slap him and is trying to stab you? Can you
take any force necessary to protect yourself?
(1) You initial the force, he responsive with a really aggressive deadly responsive force.
(a) Majority (Peterson): no right of self-defense b/c you are the first aggressor and
did not make good-faith attempt to withdraw
(i) Shows how “first aggressor rule” is special from general rule: you can’t even
respond to an unlawful force (knife is deadly force, thus disproportionate/
not reasonably necessary to a non-deadly slapping)
(ii) What can you do? Act and got to jail/die(too strict), unless you communicate
it a good faith attempt to withdraw
(b) Minority: unlawful force revives aggressor’s right of self-defense
v) What if you are attacked by a crazy person who thinks you are a space alien, without
any aggression/provocation on your part. The person has valid insanity claim, can you
use force to protect yourself?
(1) Insanity is unlawful force (still a crime, it’s just excused), so you can use reasonably
necessary/not disproportionate force to defense yourself
(a) Same for a diplomat immunity

Necessity: “Choice of Evil”, 紧急避险

1) In practice, in lots of situations, you would have a as a necessity or choice of evils defense, even
if technically you might not have a self-defense, and a lot of individual jurisdictions will allow
you to defend yourself and thinking about necessity.
2) Generic formulation (majority rule):
a) Conducts, otherwise illegal, is justified by Necessity IF
i) You are without blame in bringing about the situation; and
ii) You reasonably believed the conduct is necessary
(1) Mostly an objective test, with some subjective elements
iii) To avoid an imminent harm
iv) That is greater than the harm of the conduct itself
(1) Must be objectively “greater” by jury, D’s subjective belief is irrelevant
3) Historical limitations
a) Historically, not permitted as a defense to intentional homicide
i) Modern statutes increasingly moving away from this
b) Historically, limited to natural, non-human forces
i) Modern statutes now include human perils

145
4) A justification-type, cross-cutting defense
a) Similar to self-defense in many aspects: “reasonably believed necessary”, “imminent harm”
b) But it’s broader: can apply when other defenses cannot
5) Policy:
a) Utilitarian: minimize overall harm on society by choosing the lesser evil
b) Retributivist: people are less culpably in doing the right things
6) Examples:
a) Destroy neighbor’s house to prevent spread of fire
b) An ambulance passes a traffic light
c) Mountain climbers lost in storm take refuge in other’s house
7) Limits on reach
a) People v. Unger (ill. 1977): prison escape
i) Fact: D was transferred to honor farm after being sexually assaulted in prison, was
threatened death and walks off the farm to save his life. D failed to tell authority b/c fear
of retaliation and planned to return once he finds help from lawyer, but stole a car and
drove to Chicago, called friends in Canada after his escape
ii) Charge: prison escape – D claimed defense of necessity and compulsion (duress)
(1) Not self-defense, b/c no use of defensive force involved
(2) Not compulsion, b/c not coerced to perform the specific act of escape
(3) Necessity is appropriate defense, b/c not deprived free will, only forced to choose
b/w two evils of sexual assault/death and prison break
iii) Court ruled jury could find a necessity defense, so trial court erred in instruction
iv) Illinois statute: leave out “imminent harm” requirement in generic approach
(1) Does not require to meet all Lovercamp factors to submit to jury
(2) How to balance which harm is greater?
(a) No clear standard: kind or scope of harm? by jury or by court?
(b) Elasticity of necessity defense create vagueness and inconsistencies
v) Lovercamp approach: more stringent than general formulation
(1) Defense of necessity is only submitted to jury when all 5 factors are met
(a) Faced with specific threat of death/forcible sexual attack/substantial bodily
harm in the immediate future
(b) No time to for a complaint to authority/has a history of futile complaint
(c) No time or opportunity to resort to the courts
(d) No force or violence used towards innocents in the escape
(e) Must immediately reports to proper authority when he has attained a position
of safety from the immediate threat
vi) Concerns with necessity defense for prison escape (dissent)
(1) May encourage escapes, disrupts prison discipline, even injures guard/citizens
(2) Better to have firmer requirement to report to authorities after escape (Lovercamp)
(3) Not fully without blame by being put into prison to suffer such harm
(a) Must balance concerns of danger and need of flexibility (fire in the prison) to
design a rule that fits most circumstances
b) United States v. Schoon (9th Cir. 1992): civil disobedience

146
 i) Fact: 30 people, including Ds, went to IRS office to protest US involvement in El
Salvador/ tax money to El Salvador & got arrested. Tried to use the necessity defense.
ii) Charge: obstructing activities of IRS
iii) Conducts, otherwise illegal, is justified by Necessity IF
(1) You are without blame in bringing about the situation; and
(2) You reasonably believed the conduct is necessary
(3) To avoid an imminent harm
(4) That is greater than the harm of the conduct itself
iv) Two types of civil disobedience:
(1) Direct civil disobedience: breaking the very law you’re protesting
(a) Harm that relates to the violation of the law is directly connected
(2) Indirect civil disobedience: breaking an unrelated law to protest against this law
(a) Mere existence of a law is not a legally cognizable harm; there is always a legal
alternative; no causal link
(b) Here, D engaged in indirect disobedience, b/c not protesting against IRS
v) Court ruled necessity defense is never applicable to indirect civil disobedience
(a) Representatives are protesting elsewhere to petition the government for
redress of grievances. Existence of constitutional law governmental policy
cannot constitute a legally cognizable harm. If you have no legally cognizable
harm, well, then when you do the balance, what you're doing is always going to
be worse than the harm that doesn't count. And if they're saying a government
policy or constitutional government policy is not a legally hot knife or firm, you
can see how we're never going to be able to raise this kind of direct civil
disobedience if we unconstitutional government policy. Is not a legally
cognizable harm. 4/14 1:11:32
(b) Constitutional law or policy isn’t a legally cognizable harm, so indirect civil
disobedience will never be protected with a choice of evils defense
(i) If a policy is implemented by government it is never a harm
(2) Necessity defense in this case:
(a) Faced w choice of evils and chooses the lesser evil & to prevent imminent harm
(b) Reasonably anticipate a direct causal link b/w conduct and harm to be averted &
no legal alternative (= necessity component of traditional formulation)
(c) Missing element: without blame
(3) Necessity defense can never be proved in a case of indirect civil disobedience
(a) Mere existence of law and government policy that D try to protest cannot
constitute a legally cognizable harm
(i) MPC: The general choice of evils defense cannot succeed if the issue of harm
has been closed by legislative choice. Issue of competing harm has been
previously foreclosed by the legislature (Congress has made the choice by
passing the law, will not remake the choice in every case).
1. §3.02 Justification generally: choice of evils
a. (1)conduct that the actor believes to be necessary to avoid a harm or
evil to himself or ..

147
 b. (2) when the actor was reckless or negligent in bring about the
situation requiring a choice of harms or evils or in appraising the
necessity for his conduct, the justification afforded by this section is
unavailable in a prosecution or any offense for which recklessness or
negligence to establish culpability.
(ii) You can do the morally right thing, but have to bear the legal cost
(iii)To address dark side of civil disobedience
1. ex. school principal bombed school to draw attention
(b) No direct causal link in indirect civil disobedience: IRS obstruction can’t abate
the problems here, it takes another volitional actor, Congress, to change its mind
(c) Always a legal alternative to change the law through a democratic process
8) Criminal Law without Necessity Defense, would other mechanisms save the law from its own
hard edges?
a) Judges’ discretion with sentencing
b) Prosecution’s discretion for not going forward/charge
c) Jury nullification
d) Gov’t executive pardon or reduce sentence
e) For crimes requires mens rea of R or N. 4/14 1:28
i) Necessity is built into definition of R and N (“unjustifiable risk”)
ii) ex. if the engineer in McVay recklessly let steam engine to leak, but to prevent the boat
from going over the side of Niagara Falls – the risk will not be unjustifiable, so no R/N

Excuses
Duress
1) Generic formulation (majority approach):
a) Conduct, otherwise illegal, is excused by duress IF
i) You are without blame in bringing about the situation, and
ii) You are coerced by a threat from another of
iii) Imminent death/serious bodily harm to you or another
(1) More limited threat. Cf. choice of evil
(a) Must from threat from another human
(b) Must be threat of death/SBH
(c) Must be threatened to do a specific thing. Unger
iv) Which a person of reasonable firmness in your situation would be unable to resist
v) But the defense is not available for intentional homicide
(1) More limited crimes. Cf. choice of evil
2) Choice of Evil vs. Duress
Choice of evil Duress
Required to choose the lesser harm No requirement to choose the lesser harm
(Minimizing harm to society is a morally (may choose the greater harm, not
right thing – justified) necessarily minimizing harm to society –
not justified)
Threat nature or human Threat from another human

148
 Threat of harm Threat of death/SBH
Threatened to do a specific thing
Apply to intentional homicide Not apply to intentional homicide

3) State v. Toscano (NJ. 1977):

a) Fact: D is a doctor who aided an insurance fraud conspiracy by making false medical report.
State argue D helped because he owed gambling debt to organizer’s brother. D claimed he
helped b/c his and his wife’s lives are threatened (phone call, tracking him). D did not
receive money for his help and did not call police in hope that “it would just go away.” But
told coworker, tried to move and get a gun.
b) Seeks duress instruction, didn’t get one.
c) Hold: Should’ve gotten duress instruction. Remanded.
d) Court ruled jury can conclude sufficient duress defense
i) Evidence support D was threatened with physical forces, and jury can find threat induce
reasonable fear unable to resist
ii) Change common law formulation of duress to: (Like MPC but not exactly)
(1) Because coerced
(2) By use of or threat to use unlawful force against them or another
(3) Person of ordinary firmness wouldn’t resist
(4) (Defense to crime other than murder)
iii) Differences from MPC:
(1) Imminence
(2) Deadly force
(3) (Adjusting to reflect what they’ve seen in courts)
iv) Adopts the model penal code: Duress is a defense to a crime (other than murder) if the
defendant engaged in conduct because he was coerced to do so by the use of (or threat
to use) unlawful force against his person or another, which a person of reasonable
firmness in his situation would have been unable to resist
(1) No requirement of imminent force & no requirement of deadly force
v) P 908: Common law approach: is present imminent and pending in a such a nature is to
produce a well grounded apprehension of death or serious bodily harm, which sounds
quite similar.??? 4/20 13:14
e) Toscano’s variations from generic approach:
i) Not require “death/seriously bodily harm”, only need “unlawful force” (slighter) P909
ii) Not require “imminent”, can be future harm
(1) in general formulation, D has no duress defense (not “imminent” harm and
threat was very vague)
iii) Duress is not involuntary, facing a choice may undermine but not completely take away
an actor’s free will
(1) Toscano’s act of falsifying medical form is a voluntary act, b/c he consciously
chooses to do so, even under some pressure， should’ve go to police – voluntary
act is separate from duress

149
 f) Argue for shouldn’t have duress:
i) 17
ii) Don’t want people yield too quickly rather than shoring up their will to go as far as they
could and resisting threats and and maybe they see the prospect fo
g) No necessity here because there is no imminent harm (under general formulation)
i) Not sure if there is a risk to life here
ii) What is the real harm vs the worse harm? Consider harm to the public
iii) Is he already to blame for getting himself in this situation with gambling debt?
(1) Audrey 问的，但是应该是针对 duressDo need to consider the moral dimension, not
because you’ve done something illegal, but you infect brought this upon yourself.
4) Comparing CoE with Duress
a) Duress
i) Narrower Threat
ii) Duress: Must be threat from another. CoE: can be natural or human peril
iii) Duress: Death or serious bodily harm. CoE: just harm, even minor
b) Narrower rance of crimes
i) Duress: Can’t justify intentional homicide. CoE: Can justify
5) Hypo:
a) Huge wildfire is about to engulf you, so you steal a car to get to safe place
i) No duress, b/c not a threat from another human, only a natural threat
ii) Choice of evil, b/c applies to natural threat and life > car, (don’t forget other elements)
b) Duress? Person says help me steal car or else I’ll steal your child’s bike
i) No threat of serious bodily harm/death
c) What if there is another person there and you steal the car, leaving them?
i) Choice of evils? depends on whether there’s positive net saving of lives
(1) If the other person could have escaped if you hadn’t taken the car, the net saving of
lives would be 0 no defense
(2) If you both would have died if you hadn’t taken the car, the net saving of lives would
be 1 defense
ii) Duress  no b/c natural
d) What if you think everyone else is gone so you take the car, but you are wrong and someone
else can’t get away?
i) Still have choice of evils b/c it is a reasonable belief
e) A person threatens to destroy your car if you don’t help him steal a bicycle
i) No duress, b/c not a threat of death/SBH, only a threat of property
ii) Probably choice of evil, b/c car > bicycle
f) What if the person threatens to slap your child at face if you don’t help him steal a bicycle
i) Duress? whether it’s a threat of death/SBH may depend on the age of child
(1) If child is a baby, a hard slap would be SBH defense
(2) If child is teen, a hard slap is not SBH no defense
g) A person threatens to kill you if you don’t kill Bill. Then you kill Bill
i) No duress, b/c duress is never a defense to intentional homicide
ii) No choice of evil, b/c two evils (one life vs. one life) are equally great

150
 (1) net saving of lives = 0
(2) But if “net saving of innocent lives” is positive, can be lesser evil
h) A person holds your child and an open glass vial of bubbling fluid, saying he will pour nitric
acid on child’s face unless you help them break into neighbor’s house and steal a string of
pearls. If you do it, what moral arguments can you make?
i) minimizing overall harm to society (value of baby > pearls) - justification
ii) threat takes away your willpower (involuntariness) - excuse
iii) person of ordinary firmness would’ve done the same thing - excuse
i) A bank teller drives getaway car at gunpoint. No accomplice liability even considered
i) Even if balance of harms goes away, excuse can still prevail (if harms are equal there
might still be an excuse)

Intoxication
Voluntary intoxication
1) = the actor knowingly introduces any substance into his body that he knows or should know
have a tendency to cause intoxication/intoxicating effects. MPC 2.08(5)(b)
2) Specific vs. general intent approach (CL – majority):
a) Voluntary intoxication can be a defense to a specific intent crime but not a general intent
crime – can negate specific intent, but not general intent. Hood
i) General intent crime= when the definition of a crime consists of only the description of
a particular act, without reference to intent to do a further act/result. Hood
(1) ex. rape, homicide, assault with deadly weapon/simple assault (Hood)
ii) Specific intent crime: the definition of crime refers to intent to do some further act or
achieve some additional consequence. Hood
(1) ex. assault with the intent to kill, assault with the intent to rape Hood
iii) Problem: decision of SI/GI based on policy/outcome lead to inconsistent results
(1) Ex. Rape (GI) has no intoxication defense; assault with intent to rape (SI) can have
intoxication defense – two very similar crimes being treated differently
iv) People v. Hood (CA. 1969): D had been drinking heavily, resisted police arrest, seized
police’s gun and shot him in leg in the course of struggle.
(1) Charge: assault with deadly weapon
(2) Court ruled intoxication is not admissible to negate intent in assault with deadly
weapon and simple assault b/c they are characterized as general intent crimes
(a) Assault: unlawful attempt with intent to commit battery match definition of
specific intent crime
(b) But court ruled simple assault and ADW are general intent crime based on
policy
(i) SI/GI distinction is incongruous in results, the decision should be based on
policy, ex. effect of alcohol on human behaviors
(ii) Many courts follow Hood to treat simple assault and ADW as general intent
(iii)Affirmed assault with intent to kill/rape are still specific intent crimes
b) Voluntary intoxication is a defense if it produces a permanent condition sufficient to meet
the jurisdiction’s test for legal insanity, but not if the incapacity is only temporary

151
 i) Majority rule in both common law and MPC
2) Stasio Approach (CL – minority)
a) State v. Stasio (NJ. 1979): alternative approach to SI/GI
i) Court ruled “assault with intent to rob” is specific intent crime, but voluntary
intoxication is still inadmissible
(1) Abandon Hood rule’s distinction b/w SI and GI crimes and conclude voluntary
intoxication is not a defense based on policy
(a) Traditional approach free SI offenders creating more harm than GI offense -
undermines criminal law’s primary function of protecting society from the
results of behavior that endangers the public safety
(b) Demand of public safety and the harm done are identical irrespective of
offender’s reduced ability to restrain himself due to drinking
ii) But intoxication is admissible as evidence in other criminal procedures:
(1) To disprove premeditation and deliberation for 1st degree murder
(2) To show intoxication leads to a permanent, fixed state of insanity
(3) To prove D never participated in the crime
(4) To mitigate sentencing
(5) To demonstrate mistake (so it can negate mens rea)
(a) But court say it can’t negate mens rea for specific intent crime
(i) Illustrate the fallacy of this opinion – outcome-oriented; inconsistent
(ii) Inconsistency may stem from doubt whether voluntary intoxication should
be a defense and how much
1. Some states decide voluntary intoxication is never a defense
2. Some state allows as defense for both general & specific intent crimes
3) MPC approach (minority, but modern trend)
a) Voluntary intoxication is a defense if it negates an element of the offense. MPC 2.08(1)
i) But if recklessness establishes an element of crime and the actor, due to voluntary
intoxication, was unaware of a risk of which he would have been aware had he been
sober, such unawareness is immaterial. MPC 2.08(2)
(a) Voluntary intoxication (close to negligence) = reckless
(b) Use an objective, reasonable person standard for negligence and reckless
(i) Assume everyone should have been aware of the risk had he been sober
(and further assume he was aware of the risk, even if he wasn’t)
(c) Can’t apply when P/K establishes an element of crime
(d) Unclear whether it applies to extreme recklessness
(2) Policy: People today all know the potential consequence of excessive drinking, so it’s
not unfair to postulate a general equivalence b/w the risk created by the conduct of
the drunken actor and the risk created by his conduct in becoming drunk
(3) Problem: can be a jump b/w willingness to drink and culpability of reckless killing
(a) MPC rule is only defensible when D was consciously aware, when he became
intoxicated, of the harm that his post-intoxication conduct would risk
(i) People often can’t know while becoming drunk there’s a risk he will commit
a crimes after drunk, unless he has done this before

152
 b) Voluntary intoxication is a defense if it produces a permanent condition sufficient to meet
the jurisdiction’s test for legal insanity, but not if the incapacity is only temporary
i) permanent defect is treated as mental disease
c) Hypo:
i) Joe is sober and normal, Moe is drunk, Bo is sober with short attention span. They’re
target shooting w/ bow in Joe’s suburban backyard, decided to play blindly and move
target close to neighbor’s property line. Joe knows he may miss and hit trampoline of
neighbor but think it’s funny. Moe did not aware any risk b/c he’s drunk. Bo also did not
aware any risk b/c he’s that kind of guy who doesn’t think about it. They all short and
pierce the trampoline. All are charged with K destruction of property, with lesser
included offense of R destruction of property
(1) Joe – guilty of knowing and reckless destruction of property
(a) aware with high probability of the risk of destructing trampoline
(2) Moe – guilty of reckless destruction of property
(a) If Moe was sober, would he have been aware of the risk?
(i) Someone like Joe will, someone like Bo will not
(ii) BUT we assume everyone should’ve been aware had he been sober
(b) In the absence of facts showing what M would have been aware if sober, we use
a objective/reasonable person standard to determine what he would’ve been
aware, so he’ guilty of reckless crime
(c) Not guilty of knowing destruction of property
(i) No special rule to bump intoxication to P/K, and intoxication will negate
mens rea of K
(3) Bo – probably guilty of negligent destruction of property, but maybe even none
(a) Not drunk & not aware any risk (at most negligent)
Involuntary intoxication
1) Two kinds of defense:
a) Involuntary intoxication is a defense if it negates an element of the offense. MPC 2.08(1)
i) Valid under both MPC and common law, regardless of permanent or temporary
condition, specific/general intent crime, recklessness is element, etc
b) Involuntary intoxication is not insanity (not a mental disease), but can function as insanity
defense if it produces a like state of mind (permanent or temporary) that would qualify
for an insanity defense in that particular jurisdiction
i) “Intoxication does not in itself constitute a mental disease under § 4.02”. MPC 2.08(3)
ii) “Intoxication, which is not self-induced/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
requirements of law”. MPC 2.08(4)
(1) Pathological intoxication: intoxication grossly excessive in degree, given the
amount of the intoxicant, to which the actor does not know he is susceptible
(a) ex. actor is abnormally sensitive to something, but he does not know that
2) Exception:
a) Intoxication is NO defense if the actor did form the requisite intent of the crime, no matter
the intent was formed under involuntary or voluntary intoxication

153
 b) Regina v. Kingston (1994): disinhibition
i) Fact: D was made drunk at Penn’s flat and sexually abuse a 15-year-old boy. Penn lure
the boy in and invite D to abuse boy in order to blackmail D with pictures and tape.
ii) No involuntary intoxication defense: if because of the drug, D did have the intent to
commit sexual assault upon the boy, then he’s guilty, regardless of he’s drugged or not
(1) involuntary “disinhibition” does not negate the MR b/c an intoxicated D still possess
the intent to perform the criminal act – “drugged intent is still an intent”
(a) D formed the requisite intent after drunk, indicating the drug did not create the
desire to which D gave away, only enabled it to be released
(i) If you form the requisite intent and perform the AR  all elements of crime
are met, so there is no defense
(b) (But can still try the insanity prong)
(2) Such defense would create evidentiary problems b/c its subjective standards
(a) ex. must assess D’s personality and susceptibility; D can easily claim it falsely;
difficult for prosecution to prove, requires involvement of expert (especially for
unknown drug)
3) If no special rules for intoxication
a) Intoxication can negate mens rea
i) Ex. Joe drink a lot but don’t pass out, try to toss mug to bartender for a refill, believing
that what he’s doing is 100% safe. Mug goes through the mirror behind the bar. Charged
with P/K/R/N destruction of property
(1) Only negligence (100% unaware of risk), no P/K/R negate mens rea of everything
except negligent destruction of property
b) Intoxicated act can be involuntary act
i) ex. Joe passes out in the bar and start to slowly slide off the table. Someone has brought
a toddler that is crawling on floor. Joe falls off onto him and break toddler’s neck.
(1) Unconscious not voluntary; and can’t connect prior voluntary act of drinking to
required mens rea (b/c not even negligent)
4) Policy –why special rules for intoxication?
a) Minimize threat to society
b) Responsible for irresponsibly choosing to lose control –same moral culpability
c) Deter people from intoxication can deter people from crimes
i) 40-64% of violent crimes committed under intoxication
d) Alcohol is a common problem, allowing it as defense will excuse too many criminal
5) Dilemma of intoxication
a) The more drunken you are, the less culpability and more dangerous you are
i) fault and threat models do not align here
b) Practical difficulties in proof: whether drinking cause unconsciousness or not

Insanity
1) The M’ Naghten Rule – majority
a) At the time of the act, D must have
b) A disease of the mind – (threshold)
c) Producing a defect of reason such that he did not know (cognitive element)

154
 i) the nature and quality of the act
(1) this prong is rarely used
(2) ex. a person chokes his wife believing he’s squeezing a lemon
ii) OR that the act was wrong even if he knew the nature and quality of the act
(1) Missing element of “volition” (know the act was wrong but can’t control himself)
d) Irresistible impulse test adopted by many jurisdictions as supplement of M’ Naghten rule
i) Exonerate D who, as a result of disease of the mind, lost the capacity to control the
behavior giving rise to the criminal charge at the time of the act
(1) Contains the “volition” element missing in M’ Naghten
(2) 查一下 ppt,在 the M’Naghten formula 之前一页 大概 P10
e) temporary insanity is going to be enough under the insanity. Not under intoxication to this.
f) M’ Naghten case (Eng Rep. 1843):
i) Fact: D was convinced the torries were following him around and trying to kill him. His
plan was to shoot and kill the Prime Minister to make them stop. He instead killed the
secretary of Prime Minister b/c he was riding in the Prime Minister’s official carriage.
Experts testified D has delusion, acute insanity, no power to control and no moral
perception of right/wrong. (D super rich and got 9 of best doctors that said he had no
control over acts related to his delusion)
ii) Charge: murder – jury acquitted based on insanity defense at trial
ii) Trial: Not guilty on grounds of insanity
iii) This “Case” – judges got together to work out insanity defense. Advisory opinion
iv) If no insanity defense, D will definitely be liable for murder – the MR is satisfied
(1) No mistake of fact defense (mistaken his killing target does not matter b/c has
intent to kill a human being, and indeed kill a human being)
(2) No self-defense (not imminent threat, force is not proportionate, etc.)
v) So why a defense?
(1) Reformation/utilitarian – does it reduce threat to society?
(a) No reformation in prison &
(b) Can’t be deterred, Can’t deter a crazy person so shouldn’t use ‘criminal’ label
(i) Doesn’t have any moral responsibility so shouldn’t dilute the word of
“criminal” with those not responsible
1. Primary deterrence is the internalization of standards
2. Because if you punish someone using the criminal label, when they are
not morally responsible you drain the power of the criminal label to
entail a statement of moral blame --- long term consequences in society
from utilitarian perspective: if you take away the power of the criminal
label to entail the statement of moral blame, you're losing some of the
power of the law to be a leading influence on people's internal restraints
if those are the things that prevent them from committing a crime. more
than any other thing you're giving up a lot on utilitarian inside to.
(c) Counter
(i) lots of criminals aren’t deterrable
(ii) general deterrence – people could feign insanity

155
 vi) Not a case capable of appeal -English judiciary are brought House of Lords to give
advisory opinion given (Queen’s concern over assassination attempts)
2) “Mental disease or defect”
a) Majority approach: leave “mental disease” undefined for the jury to decide. Guido
i) Give expert’s characterization of D’s mental state and leave jury to decide
ii) Reflect the universal reluctance to define “mental disease”
(1) Insanity is a matter of law, not a matter of medical science
(a) should consider purpose of criminal law and moral blameworthiness (ex. danger
of the disease, curable or not, etc.)
(2) Community (jury) should make the decision, especially b/c it’s excuse defense
(3) If the symptoms satisfy the insanity test, why bother about the name of disease?
b) Minority approaches
i) Some define it as “any” abnormal condition of the mind which substantially affects
mental or emotional processes and substantially impairs behavior controls. McDonald
(1) Include severe mental retardation
ii) Most defines it as “severely” abnormal mental condition that “grossly and
demonstrably” impairs a defendant’s perception or understanding of reality. American
Psychiatric Association
(1) More restrictive; include psychosis of all sorts
c) Examples:
i) Diseases generally sufficient = Those that create a divorce from reality
(1) Psychosis of all sorts; severe mental retardation
ii) Disease generally insufficient
(1) Psychopaths/antisocial personal disorder
(a) But if not only a psychopath, may still qualify. State v. Werlein
(2) Epilepsy 癫痫
(3) Defect in character (moral insanity)
(4) Defect in/extreme passion (emotional insanity)
(5) Neurosis (fall shorts of “gross divorce from reality”)
(a) Ex. OCD/obsessive compulsive disorder 强迫症; compulsive gambling disorder,
postpartum disorder, post-traumatic disorder; sexual disorder (ex. pedophilia
恋童癖, sadism 施虐狂, masochism 受虐狂)
(b) But anxiety neurosis qualifies under Guido
(6) All kinds of syndromes (battered wife syndrome, premenstrual syndrome)
(7) Alcohol and drug addiction
d) Insanity vs. Automatism (unconsciousness, ex. sleepwalking, hypnosis)
i) Most states: D can elect to plead either insanity defense, involuntariness, or both
ii) Some states: if automatism result from a mental disease, D is limited to insanity defense
e) Temporary insanity is still good defense
f) State v. Guido (NJ. 1963):
i) Fact: D was abused physically and mentally by her husband – there was constant threat
of a beating. She wanted a divorce, but he would not nor end his affair. D almost took
her own life but, in way back, see her sleeping husband and shot him

156
 ii) Follow the majority approach – refuse to define “mental disease”
3) Meaning of “wrong” – split of courts
a) Many states leave the issue to jury without specifying whether “wrong” means legally or
morally wrong
b) Some states use a legal wrong standard
i) if D knew his act was legally wrong, but due to a disease of mind didn’t know it was
morally wrong, then he’s guilty. Crenshaw
ii) Policy:
(1) Uphold the legitimacy of the law; actor is deterrable if he knows his act is illegal; one
can be blamed from departing from the law; most economical to enforce the law
(a) Counter: sometimes knowledge of illegality was the very reason he did it;
disregard insanity’s psychological underpinning
c) Some states use a moral wrong standard
i) Standard is the “society morals”, not the individual’s morals. Crenshaw
(1) Problems:
(a) things that society thinks are morally wrong may not be embedded in law
(b) things that law prohibit may not be wrong for the society
ii) Deific decree exception to societal standard of moral wrong
(1) “Wherein a person performs a criminal act, knowing the act is legally and morally
wrong, but believing, because of a disease of the mind, that the act is ordained by
God” Crenshaw
(2) Policy: actor’s free will has been subsumed by her belief in the deific decree, so it’s
unrealistic to hold her responsibiiy for the crime
(3) ex. mother kills her infant child she loves, believing God has spoken to her and
decreed the act
(4) Note: personal religious belief =/= God’s decree very narrow exception
State v. Crenshaw (WA. 1983): moral wrong + legal wrong - “Wrong” (in M’Naghten formula)
iii) Fact: D sent home from his honeymoon early. Wife reconnects with him 2 days later and
he thinks she cheated on him, so he kills and decapitates her. Cleans the crime scene, hid
the body, drove 200 miles away and asked some hitch hikers to help him dispose of the
wife’s car. Claimed he was following the Moscovite faith which requires him to kill the
betrayed wife. D has history of mental problems
iv) Charge: 1st degree murder
v) Distinction is can’t conform to criminal law
vi) Court adopted legal wrong standard (“must have knowledge at time of the act that he
was acting contrary to law”) – and found D guilty
(1) Jury instruction = defines “wrong” as “illegal”
(2) Here, D know his act is both legally wrong and morally wrong from society’s
viewpoint – legal wrong is synonymous(same) with moral wrong here (in case of
murder)
(a) Evidence support D know his act is legally wrong (dissect and hide the body,
clean the blood, etc.)

157
 (b) And expert testimony support D knows other people would think he’s morally
wrong, even if he does not personally think he’s morally wrong (due to his
religious faith)
(3) HYPO-What if the defendant knows their act is legally prohibited but because of
disease of their mind they didn’t know it was morally wrong? Crenshaw will deny an
instruction
(a) 重点是在是惩罚 legal wrong 还是 moral wrong
(b) Legal Wrong or Moral Wrong? Split between courts, but also usually open
to the jury
(c) Pros:
(i) Deterrence from this standard
(ii) Upholds legitimacy of the law
(iii)Can be blamed for breaking the law in itself
(iv)Good to deter psychopaths without empathy
(d) Cons: A person’s own convictions are very compelling
(4) Deific Decree Exception: if, due to a mental disease, you think that the unlawful act
is directly ordained by God (God told you to do so) ----- does not apply here
(a) There is something higher than the law: God
(i) God’s command is a higher power dividing moral right and wrong. So even if
you know that’s legally wrong, you still have a defense
(b) Mere beliefs/rules of the religion are not deific decrees
(i) Religious faith is open to D’s personal interpretation and in this case, the
word is not come directly from god, so not Deific decree exception does not
apply (personal religious belief ≠ God’s decree)
4) MPC Approach – minority
a) A person is not responsible, if at the time of his criminal conduct MPC 4.01(1)
i) As a result of mental disease or defect
(1) “Mental disease” does not include abnormality manifested only by repeated
criminal/antisocial conduct – sociopath/antisocial disorder MPC 4.01(2)
ii) He lacks substantial capacity
(1) To appreciate the criminality [wrongfulness] of his conduct
(a) “Lack substantial capacity”:
(i) Volition element, but does not require complete destruction of
will/knowledge – much easier and broader
(ii) “substantial” is broad enough to leave matter for jury to decide. Blake
1. = appropriate magnitude measured by standard of humanity in general
(b) “Appreciate”: include emotional dimension, not just cognitive dimension
(c) “[Wrongfulness]”: leave to court to decide use of legal wrong or moral wrong
(2) OR to conform his conduct to the requirement of law. MPC 4.01
b) Blake v. United States (1969)
i) Fact: D attempted to obtain a hearing the US District Court to relieve him of some prison
release instructions. After being unsuccessful, he had his chauffeur drive him to a bank
which he robbed at peak rush hour, went back to the car and was driven away, no
trouble getting away. He then returned to the court the next day with his attorney to

158
 again ask for a writ and he was arrested immediately. D had a long history of psychiatric
treatment and electroshock therapy after suffering epileptic seizure.
(1) Battle of expert over state of mind
(a) Defense’s expert: schizophrenia (psychosis) – mental disease
(b) Prosecution’s expert: sociopathic personality – not mental disease
ii) Charge: bank robbery – D claims insanity defense
iii) Trial court instruct Davis approach (formulation) (SCOTUS): perverted and deranged
condition of the mental and moral faculties (pg. 1034)
(1) Insanity means such a “perverted and deranged condition of the mental and moral
faculties, as to render a person incapable of distinguishing b/w right and wrong, or
unconscious at the time of the act he is committing, or his will has been so
completely destroyed that his actions are beyond his control
(a) Insert volition element, but very strong language (complete > substantial)
(b) D has no defense under this, b/c does not have complete mental disorientation
(2) Adds a volitional test to M’Naghten - common addition to M’Naghten: “Render a
person incapable of distinguishing between right and wrong”
(3) “Strict” standard
(4) This court: no insanity defense under Davis, but defense possible under MPC
approach
iv) Court adopt MPC §4.01 approach – insanity defense is possible - “lacks substantial
capacity…” pg. 1034
“ (1) A person is not responsible for criminal conduct if at the time of such conduct
as a result of mental disease or defect he lacks substantial capacity either to
appreciate the criminality [wrongfulness] of his conduct or to conform his conduct
to the requirements of law.
(2) As used in this Article, the terms "mental disease or defect" do not include an
abnormality manifested only by repeated criminal or otherwise anti-social conduct.”
(1) Could be either schizophrenic 精神分裂 or sociopath 反社会, D may or may not be
in a psychotic episode at time of the robbery
(2) But b/c the language “substantial” is broad enough, leave matter to jury to decide
(3) Doesn’t require a total destruction of will or knowledge - just substantial capacity
(4) Conforming conduct to the requirements of the law
(5) “Appreciate” - includes affective awareness rather than just cognition
(6) Each case includes a softening of the standard; more flexible approach
v) 司机的合谋：knowledge is not enough.
(1) ?那知道了但是放任了怎么算?
5) History of insanity
a) Popularity of the defense has gone in waves
i) Early expansion; broad MPC approach getting close to majority
(1) Standards were more and more flexible, jury determination may be the most
appropriate, so it doesn’t really matter which approach we pick
ii) Shift in 1982: Reagan assassination attempt cut off expansion of insanity
iii) Now contracting: M’ Naghten is clear majority and MPC clear minority
(1) 4 states = no real insanity at all; convict of “guilty, but insane” and go to prison, but
get treatment

159
 (2) New Hampshire = straightforward; were the actions the product of the mental
disease or the person’s will? Durham approach?
b) No matter what rule you use there hasn’t seemed to be a huge impact  juries seem to be
doing what they want
6) Seemingly insignificant defense – rarely raise, even less rarely successful
a) Stigma of being “crazy” if win the defense
b) Can still civilly committed and retrain in medical facility if win the defense
i) Mandatory medical treatment can last longer than a conviction
ii) sent to restraint facility anyway if goes to prison with medical problem
7) So why do have it?
a) Can eliminate death penalty in capital punishment jurisdictions
b) Has a bearing on our notions of criminal culpability and define society idea of moral
responsibility—separate the sick from the evil
i) Cognitive test: recognize/know/understand his act is wrong?
(1) Cognition = intellect, reason, logic
(2) Turn on volition: we excuse those who can’t understand NOT b/c they don’t
understand, but b/c their lack of understanding deprives their ability to make a free
and commendable choice
ii) Consciousness test: has volition to control his act, even if he knows it’s wrong?
(1) actor’s lack of control is not something should be blamed/wrong
iii) Emotional dimension
8) Policy:
a) Utilitarian: crazy person can’t be deterred or recapitalized, can achieve deterrence via non-
criminal vehicle; general public won’t be deterred b/c most people are sane
i) Counter: Limit the use of insanity deter people from faking insanity; insane people can
pose danger to general public
b) Retribution: we excuse b/c symphony on people who can’t control his actions/mind
c) Turn on relationship b/w moral responsibility and criminal law

Role of Criminal Lawyer

1) Being an attorney shape your own moral responsibility
a) Personal value vs. professional role
i) Good lawyer and good person at the same time
b) Devil’s advocate: criminal defense attorney
c) Disallowed to review information about client unless every few exceptions appliy

160