Criminal Law Outline

I.

ANALYSIS - Break down elements - look at each distinct element in analysis

- Think of practical ramifications - look at definitions!
- Use all the facts you can to emphasize your points

THEORIES OF PUNISHMENT

A. What is the theory of punishment that the US law adopts?

Retribution - Claims that punishment is justified because people deserve it. This is somewhat backward looking, because
justification is found in prior wrongdoing
Leading philosophical justification for the institution of criminal punishment.
The distinctive aspect of retributivism is that the moral desert of an offender is a sufficient reason to punish them. Any other
benefits to punishment are simply added bonuses, but no part of the justification for punishing.
Retribution theory says that we are justified in punishing because and only because offenders deserve it. Moral culpability
gives society a duty to punish, and justifies punishment.
Negative retributivism - The innocent should never be punished
Positive retributivism - Guilt is both a necessary and sufficient condition for punishment.
Deterrence / utilitarianism- Claims the justification lies in the useful purposes that punishment serves - forward looking, punishment
is justified on the basis of the supposed benefits that will accrue from its imposition
Utilitarianism on the whole is a principle that approves or disapproves of every action, according to the tendency which it
appears to have to augment or diminish the happiness of the party whose interest is in question.
Applied to a legal perspective, utilitarianism holds that the object of laws is to augment the total happiness of the community,
and exclude anything that would detract from this happiness.
Punishment in itself is negative to the overall happiness of the community, and should only be applied under the right
circumstances. Punishment can only be justified if it produces enough good to outweigh the bad.
Public attitude shaping / Normative - criminal law campaigns with the intention of changing people's attitudes toward certain
criminalized acts. The very fact that acts are considered bad enough to be criminalized is enough to change people's attitud es don't necessarily avoid acts because they are morally repugnant, but instead because of the stigma of committing an act that could
lead to punishment.
I.e. - drunk driving - an action that is engaged in by people who are otherwise law abiding - may avoid it because of the
criminalization.
Incapacitation
Effects on criminal's attitudes, skill sets, and social and economic prospects - Both positive and negative
Effects on public attitudes towards the judicial system - Can indirectly increase public cooperation with the law
Most important to realize that there is generally considered to be more than one valid theory of punishment within the United
States.
It is generally understood that the higher chance of being caught, not worse punishment, is a better deterrent.
B. Why do we punish?
Intentional imposition of punishment by the state requires justification, because it involves pain or deprivation that people wish to
avoid.
Central question - whether society should have a system of mandatory rules enforced by penalties
Future threats will be taken less seriously if past threats are not fulfilled - punishment in some cases is a practical necessity for a
system in which threats of such are expected to be taken seriously

II.

ACTUS REUS

A. General Definition
i. Must have a voluntary, conscious act
ii. Act, not just an omission
i. Except where an omission is enough
iii. Most common definition includes both conduct and result of conduct
i. Some crimes punish mere conduct - ie - DUI - punishing the conduct even when there is no harmful result
ii. Some crimes are focused on result - ie - murder - crime aims to punish or prevent harmful result
B. Actus Reus: Voluntary act
i. Many modern criminal codes expressly provide that a person is not guilty of an offense unless his conduct "includes a volunt ary act
or the omission to perform an act of which he is physically capable" - bars liability for purely involuntary conduct
ii. MARTIN v. STATE (1944):
i. Martin was convicted of being drunk on a highway after officers arrested him at his home and took him onto the highway,
where he allegedly committed the acts.
ii. Court of appeals found that in the statute, "a voluntary appearance is presupposed," and since Martin did not voluntarily
appear in public, he was not in violation of the statute.
iii. STATE v. UTTER (1944)
i. Utter was charged and convicted of the crime of manslaughter of his son.
ii. Utter claimed that he killed his son as the result of an involuntary conditioned reaction to being approached from behind,
which he learned during his time in the army.
1) In this case, court ruled against Utter because he did not have enough evidence to prove his claim
iii. Court of appeals said that a voluntary act must be a conscious act, which does not include:
Bring dragged/pushed

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 Bring dragged/pushed
Asleep
Automatism/involuntary spasm
iv. Court says that an act committed while one is unconscious is really no act at all
v. Court also said that unconsciousness is not a defense where it is voluntarily entered into through the use and consumption of
alcohol or drugs
iv. MPC 2.01
i. A person is not guilty if they act involuntarily - lies in accordance with the decision of Utter - common law and MPC line up.
Involuntary acts:
1) Reflex or convulsion
2) Bodily movement during unconsciousness or sleep
3) Conduct during hypnosis or resulting from hypnotic suggestion
4) Bodily movement otherwise not a product of the effort or determination of the actor
ii. Possession is an act if the person knowingly procured or received the thing possessed, or was aware of the thing for a
sufficient period to have been able to terminate the possession.
v. MPC 1.13
i. "Act" or "action" means a bodily movement whether voluntary or involuntary
ii. "Omission" means a failure to act
C. Actus Reus: Omissions
i. General Principles:
i. When can a person be held liable for a crime for what they didn't do, as opposed to what they did?
1) About ten states impose some general duty to help people who are in peril (many impose more specific duties, such as a
duty of various professionals to report evidence of child abuse that they see in the course of their job).
2) Common law took the view that people do not have a duty to rescue their fellow man - even just by calling 911.
ii. Why not punish omissions?
i. Omissions are typically more ambiguous than acts - it is hard to determine the motives behind someone's omission.
ii. Line-drawing issues may arise - if many people fail to act to prevent harm to another, who do you punish? To what degree?
iii. Well-meaning bystanders could cause more harm than good - a rule requiring assistance might cause more harm than good
iv. Issue of freedom - criminal law generally prevents people from doing X, and a rule requiring assistance would compel people
to do Y -this inhibits individual freedom of action.
v. Even without the law, people will rescue - whether out of fear of shame, desire for glory, feeling bad (like a coward), desire for
personal gratification - non-legal effects
iii. PEOPLE v. BEARDSLEY (19 07)
i. Respondent was originally tried and convicted of manslaughter on charges stemming from the death of Blanche Burns.
ii. Beardsley left Burns in the care of his neighbor while she was highly intoxicated, and she died
iii. The issue was whether or not Beardsley had a legal duty towards Burns, and neglected this duty, omitting care leading to
Burns' death.
iv. The court found that just because Burns was in Beardsley's house, this did not create a legal duty from him to her as exists in
law.
v. Although Beardsley may be morally at fault, there are no legal ramifications for his actions.
iv. When can omission satisfy the actus reus requirement?
i. Duty imposed as result of relationship
Parent/minor child
Husband/wife
ii. Duty imposed by contract - voluntary acceptance of duty
iii. Voluntary assumption on the spot of duty, especially when you sequester them from other help/prevent other people from
helping - make other people think they don't have to help (not in Beardsley, in note 2 on p.137)
iv. Caused harm negligently or maybe even non-negligently - for example, hitting someone with your car (note 2 on p.137)
v. Caused harm by duress or deceit
v. MPC 2.01(3) - Liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
(a) The omission is expressly made sufficient by the law defining the offense; or
(b) A duty to perform the omitted act is otherwise imposed by law
1) MPC basically aligns with C/L to say that there is no liability for omission in the absence of a specific law, or a duty
between parties
vi. Should the law be changed so that similar actions would be criminal in the future?
i. Interference may do more harm than good
ii. Such a law may constitute a restraint on liberty
iii. Not fair to criminalize people who suffer from a normal human behavior - panicking or being unable to act in the face of
certain situations

III.

MENS REA

A. General Definition
i. In the traditional sense - "a guilty mind; a guilty or wrongful purpose; a criminal intent"
i. Actus non facit reum nisi mens sit rea - An act does not make [the doer of it] guilty, unless the mind be guilty; that is, unless
the intent be criminal.
ii. In the more modern sense, mens rea refers to the mental state as to the effect - necessitates that the defendant must be in the
relevant mental state as to the particular crime in order to be guilty
i. In the more narrow sense, mens rea refers to the mental state the defendant must have had with regard to the "social harm"
elements set out in the definition of the offense. This looks to the specific frame of mind requisite in the wording of the

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i.
elements set out in the definition of the offense. This looks to the specific frame of mind requisite in the wording of the
offense, and necessitates that the defendant must have been in that state of mind in order to be guilty.
iii. When a law defines mens rea as to one element of an offense, but not to others, you can infer that the mens rea applies to th e
other elements as well
iv. REGINA v. CUNNINGHAM (1957)
i. Man tears gas meter off a wall and almost kills his mother in law
ii. Court instructed the jury to think of the word malicious to mean "wicked", and Cunningham was wicked in the sense of being a
thief (though perhaps not wicked with regard to killing his mother in law)
iii. In the court's view, to be "malicious," was a shorthand for intent or recklessness - the person must intend to do the harm, or
be reckless about the harm by foreseeing that it could happen and doing it anyway. Maliciousness is neither limited to, nor
does it require, any ill-will toward the person injured.
v. PEOPLE v. CONLEY (1989)
i. At a party, Conley demands a beer of Carroll, Carroll says no, Conley swings a wine bottle, hitting a third boy, O'Connell, in the
face, causing some permanent injuries (musosal mouth, numbness)
ii. Court holds that to lead to a conviction, defendant must have had intent/knowledge to cause disability.
iii. The relevant statute describes intent or knowledge as to the result of the actions - the offense is defined in terms of result the intent is to cause the result
1) COMMON LAW - intent ordinarily is defined to include not only those results that are the conscious object of the actor what he wants to occur - but also those results that the actor knows are virtually certain to occur from his conduct, even
if he does not want them to arise
2) In this case, "even if Conley had denied any intention to inflict permanent disability, the surrounding circumstancesare
facts from which the jury could reasonably infer the intent to cause permanent disability"
3) Intent can be inferred from the surrounding circumstances
iv. Subjective standard = inside someone's head - what a person thought/wanted/knew
1) Knowledge = consciously aware - subjective standard
v. Objective standard = what a reasonable person would do
B. Transferred Intent
i. Under C/L, "the accused is deemed as culpable, and society is harmed as much, as if the defendant had accomplished what he had
initially intended, and justice is achieved by punishing the defendant for a crime of the same seriousness as the one he trie d to
commit against his intended victim"
ii. Somewhat of a legal fiction - not necessary - "the law speaks in terms of an unlawful intent to kill a person, not the person intended
to be killed" - intent is not necessary towards a specific person
iii. MPC 2.03(2) - When purposely or knowingly causing a particular result is an element of an offense, the element is not established if
the actual result is not within the purpose of the contemplation of the actor unless:
(a) The actual result differs from that designed or contemplated, as the case may be, only in the respect that a different person or
different property is injured or affected or that the injury or harm designed or contemplated would have been more serious or
more extensive than that caused
C. MPC 2.02
i. Consistently applies an elemental approach to the issue of mens rea - prosecutor must prove that the defendant committed each
material element of the charged offense with the particular state of mind required in the definition of that crime
ii. Objective: This part of the code expresses the basic requirement that no valid criminal conviction may be obtained unless some
aspect of mental culpability is proved with respect to each material element of the offense. The code requires that one of the four
levels of culpability be proved with respect to each material element of the offense, including:
1) The nature of the forbidden conduct
2) The attendant circumstances
3) The result of the conduct
The objective or purpose of clarifying these aspects of the Model Penal Code is to help define crimes and make definitions mo re
concrete - in effect getting rid of the obscurity with which the culpability requirement is often treated.
1) Purpose:
a) If the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of
that nature or to cause such a result.
b) If the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes
or hopes that they exist.
2) Knowledge:
a) If the element involves the nature of his conductor the attendant circumstances, he is aware that his conduct is of that
required nature or that such circumstances exist; and
b) If the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a
result
c) 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 (50%) of its existence, unless he actually believes that it does not exist
3) Recklessness:
a) Involves a conscious disregard of a substantial and unjustifiable risk that the material element exists or will result from
his conduct.
b) Risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard of conduct a law-abiding person
would observe in the actor's situation. Acceptability of a risk in a given case depends on many variables.
c) Jury must determine whether or not the disregard of risk by the actor, given the actor's perceptions, involves such gross
deviation.
d) DEFAULT IF MENS REA IS NOT PRESCRIBED BY LAW
4) Negligence:
a) Actor should be aware of a substantial and unjustifiable risk that the material element exists or will result from his

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a) Actor should be aware of a substantial and unjustifiable risk that the material element exists or will result from his
conduct
b) The risk must be of such a nature and degree that the actor's failure to perceive it, considering the nature and purpose
of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a
reasonable person would observe in the actor's situation
c) Negligence is distinct from the other categories because it does not involve a state of awareness. A person acts
negligently when he inadvertently creates a substantial and unjustifiable risk of which he ought to be aware.
d) As with recklessness, the culpability of the actor must be left up to a jury to determine under the specific circumstances.
The jury must perform two distinct functions:
a) Examine the risk and the factors that are relevant to the action's substantiality and justifiability, in terms of an
objective view of the situation as it actually existed, and
b) Make the culpability judgment, in terms of whether the failure of the defendant to perceive the risk justifies
condemnation.
5) Offense Silent as to Culpability: 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 purposely, knowingly, or recklessly with respect thereto.
6) Prescribed culpability requirement applies to all material elements: When the law defining an offense prescribes the kind of
culpability that is sufficient for the commission of an offense without distinguishing among the material elements thereof,
such provision shall apply to all the material elements of the offense
iii. STATE v. NATIONS (1984)
i) Police find a 16-year old working at Sandra Nation's strip club, who Nations claimed she did not know was 16. Nations claims
to have checked the girl's ID, but it is later proved that this was impossible.
ii) Missouri statute had a knowing requirement - but did not encompass the MPC's "willful blindness provision - " only supports
the strict definition of knowledge
a) Willful blindness - inference of knowledge of an existing fact is usually drawn from proof of notice of a substantial
probability of its existence, unless the defendant establishes an honest, contrary belief.
iii) Court found that Nations was only acting recklessly under Missouri law - knew of a substantial and unjustifiable risk that the
girl was under 18

D. Strict Liability Offenses

i. Generally strict liability applies to less serious crimes (for example, traffic violations), with the exception in some state s of statutory
rape.
ii. GARNETT v. STATE (1993)
i) Garnett, a 20-year old retarded man with very low functional levels, had sex with Frazier, then age 13, who had previously told
Garnett that she was 16
ii) Raymond claimed that the purpose of criminal law is to assess and punish morally culpable behavior, which he claims was
absent here
iii) Commentators to the MPC disapprove of statutory rape as a strict liability crime - "voluntary intercourse with a sexually
mature teenager lacks the features of psychic abnormality, exploitation, or physical danger that accompanies such conduct
with children"
iv) 17 states have enacted laws permitting a mistake of age defense in some form in cases of sexual offenses with underage
persons
v) Court held that statutory rape was a strict liability offense because the Maryland legislature clearly could have included a
mental state requirement but chose not to, and thus found Garnett guilty but suspended his sentence.
vi) Court also said that any change in the statutory rape law would have to come through the legislature, not the courts.
vii) Dissent #1:
a) Says we should only apply strict liability for those who have the ability to appreciate the riskiness of their conduct.
b) Describes 2 kinds of strict liability:
a) "Pure" strict liability - purpose is to regulate rather than punish behavior - usually minor violations
b) Other offenses - legislature has dispensed with a knowledge requirement in one respect but has not intended to
impose criminal liability regardless of the defendant's state of mind
i) Says that there is nothing to say that the legislature intended to apply strict liability in this case, especially
since strict liability offenses do not typically have such harsh punishments
viii) Dissent #2:
a) Says that legislature should not be able to subject a defendant to strict liability in every case, whatever the nature of the
crime and no matter how harsh the penalty
E. Mistake and Mens Rea - Mistake of fact
i. PEOPLE v. NAVARRO (1979)
i) Navarro took some beams from a construction site - his claim is that the beams were abandoned as worthless and the owner
had no objection to his taking them - once the items are abandoned they are no longer the owner's property
ii) Court found that "If [the jury] concluded that defendant in good faith believed that he had the right to take the beams, even
though such belief was unreasonable as measured by the objective standard of a hypothetical reasonable man, defendant was
entitled to an acquittal since the specific intent required to be proved as an element of the offense had not been established."
a) There is no reasonable man standard - have to look at what the defendant himself believed
iii) Trial court says that the mens rea for the case was effectively negligence - appellate court says there can be no such thing as
larceny by negligence because of the requirement of a specific intent to steal - you are only liable if you knew that you were
taking someone else's property (knowledge)
iv) "rather simple rule that an honest mistake of fact or law is a defense when it negates a required mental element of the crime"
v) Judgment was reversed and case remanded for a new trial
ii. What mistakes exculpate?
Mens Rea

Reasonable Mistake

Unreasonable but honest

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Reckless mistake

(as they might

appear in a
statute)

non-reckless mistake

Strict Liability

No

No

No

Negligence

Exculpate

No (must be honest and reasonable) No

Recklessness

Exculpate (requires substantial Exculpate

and unjustifiable risk)

No

Knowledge

Exculpate

Exculpate

Exculpate

Purpose

Exculpate

Exculpate

Exculpate

i) Reckless mistake - aware of a substantial and unjustifiable risk but consciously disregards - cannot be an honest mistake
because an honest mistake implies that you were not aware of a chance of a risk

F. Mistake and Mens Rea - Mistake (or ignorance) of law

i. PEOPLE v. MARRERO (1987)
i) Marrero was a federal prison guard in CT, and was arrested for carrying an unlicensed gun in NY
ii) Marrero claimed that he thought it was OK to carry a gun because of New York Penal Law 265.20(a)(1), which says that peace
officers were exempt from criminal liability under the firearm possession statute. He argued that his interpretation of the
(ambiguous) law was an honest and reasonable mistake
iii) The intermediate court of appeals rules that the statute was intended to apply to state prison guards within NY
a) The law is what the courts define the legislature to mean
b) At the time Marrero was carrying the gun, this decision hadn't been made yet - it was decided in his own case
iv) Court holds that the statute Marrero relied on did not actually turn out to be erroneous, but was just further clarified by the
intermediate court - if the court had thrown out the statute, Marrero would have had a defense
v) Dissent:
a) Says that because in this situation the man is law-abiding and would not have acted but for his mistaken assumption as
to the law, there is no need for punishment to deter him from further unlawful conduct - law is essentially looking out
for society from a utilitarian standpoint rather than looking out for individual fairness
b) Common law idea that every man should know the laws is outdated - we can't assume this now
c) Why would legislature have adopted this law if they agreed with the common law?
d) Says majority was acting out of policy interests, not based on statutory interpretation
ii. Distinctions between Navarro and Marrero - how to distinguish between mistake of fact and mistake of law
i) Figure out what the elements of the crime are
ii) Once the elements are indentified, are these elements applicable to the particular person?
iii) Figure out the defendant's mens rea with regard to each of the elements
iv) Marrero made a mistake about how the law would end up being interpreted, Navarro made a mistake as to whether the
element was satisfied
a) If Marrero had, for example, been mistaken as to whether the gun was loaded, the case would have come out
differently
iii. MPC 2.04
(1) Ignorance or mistake may be a defense when:
a) It negates the mental state/voids mens rea necessary for crime
b) Law provides that the state of mind established by such ignorance or mistake constitutes a defense
(2) A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such
conduct when
a) He 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; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or
grant of permission; or (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

IV.

CAUSATION

A. Actual Cause (Cause-in-fact)

i. VELAZQUEZ v. STATE (1990)
i) But for test - "defendant's conduct is a cause-in-fact of the prohibited result if the said result would not have occurred but for
the defendant's conductthe result would not have happened in the absence of the defendant's conduct"
ii) Substantial factor test - occurs when two defendants, acting independently and not in concert with one another, commit two
separate acts, each of which alone is sufficient to bring about the prohibited result. In these rare cases, the courts have
followed the substantial factor test to find that the defendant's conduct was a cause-in-fact of a prohibited result if the subject
conduct was a substantial factor in bringing about the said result.
a) Even though the victim would have died but for the conduct of either party, they are both substantial factors
ii. OXENDINE v. STATE (1987)
i) Both Oxendine and his girlfriend inflicted injury on Oxendine's son, and it is somewhat unclear from the evidence which of
them actually caused Jr's death.
ii) Prosecution's theory was that the girlfriend inflicted the mortal wound, but Oxendine inflicted a wound that accelerated Jr's
death.
a) Accelerating someone's death is still considered murder/manslaughter
b) But for Oxendine's actions, Jr would have lived longer
iii) Oxendine's conviction for manslaughter was reversed and remanded for re-sentencing based on the lesser conviction of
assault in the second degree, because the evidence against Oxendine was essentially not introduced at the right time and was

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iii)
assault in the second degree, because the evidence against Oxendine was essentially not introduced at the right time and was
thus insufficient to support his original conviction
B. Proximate Cause ("Legal" Cause)
i. General notes
i) Someone cannot be the proximate cause of something without also being the actual cause
ii) Proximate cause serves to determine who or what events among those that satisfy the but-for standard should be held
accountable for the resulting harm
iii) Proximate causation analysis is an effort by the fact finder to determine, based on policy considerations or matters of fairness,
whether it is proper to hold the defendant(s) criminally responsible for a prohibited result - based on factors that potentially
affect causal responsibility
ii. KIBBE v. HENDERSON (US Court of Appeals, 2nd circuit 1976)
i) Kibbe is filing a writ for habeas corpus - saying his right to due process has been violated - when judge gave instructions to the
jury, he did not instruct the jury to consider whether causation was a factor - therefore Kibbe's constitutional right to have
every element of the crime proved beyond a reasonable doubt has been violated
ii) Kibbe robbed Stafford after offering him a ride home from the bar, then left him by the side of the road, very drunk, without
his eyeglasses and not wearing his boots and jacket. Stafford was hit by a car driven by Blake and died
iii) Appellate court affirmed the conviction on the grounds that Stafford's death was caused by Kibbe's acts as well as by the act of
Blake - but Blake's act was not an supervening cause
a) Supervening cause - one that comes afterward, has the effect of superseding the first cause and breaking the chain of
causation
iv) Writ was granted, but NY Supreme Court found that the lack of causation instruction to the jury was not significant
v) Court says that the controlling questions are whether the ultimate result was foreseeable to the original actor and whether
the victim failed to do something easily within his grasp that would have extricated him from danger
iii. Is the intervening cause a coincidence or a result?
Coincidence
Defendant's act put the
victim at a certain place at a
certain time, and because
the victim was so located it
was possible for him to be
acted upon by the
intervening cause

Foreseeable

Proximate cause

V.

Response
Involves a reaction to the
conditions created by the
defendant

Unforeseeable

No Proximate Cause

Normal result

Abnormal result

Proximate Cause

No Proximate Cause

CRIMINAL HOMICIDE

A. Overview
i. At common law, murder was defined as the unlawful killing of another human being with "malice aforethought"
B. Defenses: Justification and Excuse
i. Justification - Society indicates its approval of the actor's conduct - with homicide, a justification implies that under the
circumstances society does not believe that the death of the human being was undesirable, or that it at least represents a le sser
harm than if the defendant had not acted as he did. Justifications focus on the act.
ii. Excuse - A defendant asserting an excuse admits to wrongdoing, but asserts that he should not be punished because he is not
morally blameworthy for the harm. Excuses focus on the actor.
C. Manslaughter: "Heat of Passion" killings - Common Law
i. Voluntary manslaughter: an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there
has been a reasonable opportunity for the passion to cool. You deliberately kill someone, but a reasonable person would believe
that you were provoked to do so, and would sympathize with the response. Two components:
i) Subjective - descriptive - were you or were you not provoked/angered/disturbed? Common law
ii) Objective - normative component - was it adequate provocation/was there a reasonable argument or excuse?
a) When deciding if something is reasonable - coming up with societal/normative rules and taking a side in the dispute.
b) To what extent should the test, while objective, take into account the characteristics of the defendant?
c) As to provocation by words - need to look at what words mean in the context of the conversation, whether the person
was aware of the true meaning of a word
ii. Common law manslaughter
i) In common law, there is uncertainty whether the provocation defense is a justification or an excuse
a) Justification - all adequate provocation under common law involves unlawful conduct by the provoker - therefore, the
unlawfulness of the provocation makes the response less socially undesirable.
b) Excuse - we are prepared to excuse the actor for feeling as he does - we emphasize with his feelings. The provocation
defense is based to a considerable extent on the law's concession to ordinary human frailty - the question is whether we
(or the jury) find the defendant's conduct as within the range of expected human responses

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(or the jury) find the defendant's conduct as within the range of expected human responses
c) In either case, we are not completely justifying or excusing the defendant's actions that have resulted in the death in
another person - the defense is based on our common experience that when we become exceptionally angry, our ability
to conform our conduct to the dictates of the law is seriously undermined - this greater difficulty to control conduct
mitigates a provoked actor's blameworthiness.
d) We must be prepared to say that an ordinary person in the actor's circumstances might become sufficiently upset by the
provocation as to act violently
ii) Test for common law manslaughter :
a) Adequate provocation - would adequately inflame the passions of a reasonable man (depends on jurisdiction):
1A. Provocation with established category
1B. Any that the fact finder sees as adequate except insulting words
1C. Any if adequate provocation
b) Actually provoked - actually acted in the heat of passion
c) Without time to cool off - done in the sudden heat of passion (could be a part of #2)
d) Without time in which reasonable person would have cooled off
iii) Traditionally, victim's behavior would have had to fit within one of the previously determined categories of provocation which
the law had already recognized as sufficiently provocative to mitigate what would otherwise be malicious conduct by the
defendant
iv) Over the years, traditional view has expanded to form the modern view of provocation, under which it has been determined
that the issue should be left nearly entirely to the jury
a) Rationale - "the law can not with justice assume by the light of past decisions to catalogue all the various facts and
combinations of facts which shall be held to constitute reasonable or adequate provocation - " idea that provocation
defies any specific categorization
iii. GIROUARD v. STATE (1991)
i) Girouard killed his wife after being verbally berated by her, and was convicted of second degree murder and sentenced to 22
years
ii) On appeal, Girouard claimed that his wife's verbal insults should be counted as provocation to mitigate murder to
manslaughter. Girouard argued that manslaughter is a catch-all for homicides which are criminal but that lack the malice
essential for a conviction of murder.
iii) Essential questions - (1) can mere words count as sufficient provocation? (2) should provocation be considered by fact-finder
on a case-by-case basis, or rather be limited to categories the court had heretofore recognized?
iv) Court held that in this jurisdiction, mere words can never count as adequate provocation for manslaughter
D. Manslaughter: "Heat of Passion" killings - MPC and Beyond
i. Defense of extreme emotional disturbance
i) Defendant must have acted under the influence of extreme emotional disturbance - wholly subjective
ii) There must have been a reasonable explanation or excuse for such extreme emotional disturbance
a) Reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the
circumstances as the defendant believes them to be - ultimate test is objective - there must be a "reasonable"
explanation
ii. Extreme emotional disturbance is distinguished from heat of passion in that
i) EED doesn't necessitate a cooling-off period
ii) Heat of passion is up to individual fact finder
iii) Provocation suggests some degree of fault in some measure on the victim's part
iii. PEOPLE v. CASASSA (1980)
i) Defendant and the victim dated casually before the victim broke off the relationship, which defendant said devastated him.
Defendant eavesdropped on victim on several occasions, which he claimed caused him great emotional distress.
ii) Defendant claimed that at the time of the killing he had acted under the influence of "extreme emotional disturbance" and
should therefore not be guilty of murder. Also claimed that his extreme emotional disturbance only had to be reasonable
from his own point of view - completely subjective standard
iii) Court says that reasonableness does not indicate complete subjectivity - points to passage from MPC - "reasonableness of
which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the
defendant believed them to be"
a) Determination of reasonable situation should be "made by viewing the subjective, internal situation in which the
defendant found himself and the external circumstances as he perceived them at the time"
b) Even if person was unreasonable - take the facts as you find them, and thus determine whether the explanation or
excuse for the emotional disturbance was reasonable. Jury should be able to show empathy if they want to
iv) Court found that the legislature intended the statute to allow the fact finder the discretionary power to mitigate the penalty
when presented with a situation, which, under the circumstances, appears to them to have caused an understandable
weakness in one of their fellows
v) Court upheld the trial court's determination of Cassassa's guilt, finding that the trial court properly applied the statute
E. Unintentional homicide

Common Law
Reasonable mistake No Crime

MPC
No Crime

Simple Negligence

No Crime (certain jurisdictions could No Crime

deviate - Williams)

Gross Negligence

Involuntary Manslaughter

Negligent Homicide

Recklessness

Involuntary Manslaughter

Manslaughter (involuntary)

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Extreme
Recklessness

Murder (Depraved Heart/Gross

Indifference) base antisocial
motive - Berry

Murder
Threat of danger is very high - extreme indifference - distinguished from a
substantial risk

Knowledge

Murder

Murder

Purpose

Murder/Voluntary Manslaughter

Murder/Voluntary Manslaughter (extreme emotional disturbance)

i. In general
i) Unintentional killings that are the result of unjustified risk-taking
ii) Common law hierarchy:
a) No negligence - simple negligence - no criminality
b) Involuntary manslaughter - gross negligence - gross deviation from standard of care used by an ordinary person where
the negligent conduct can reasonably be said to manifest a "wanton or reckless" disregard for human life
c) Depraved heart murder - extreme recklessness - acts of a life-endangering nature so reckless that they manifest a
wanton indifference for human life
iii) Murder requires malice aforethought - malice in depraved heart murder is implied because the circumstances attending the
killing show an abandoned and malignant heart
iv) MPC 210.2-4
a) Murder - purposely, knowingly, or committed recklessly under circumstances manifesting extreme indifference to the
value of human life
b) Manslaughter (involuntary) - reckless
c) Negligent homicide - committed (grossly) negligently
ii. BERRY v. SUPERIOR COURT (1989)
i) Berry had his fighting trained pit bull tied up behind an incomplete fence, left to guard his marijuana plants
ii) Berry is arguing that the charge of murder should be dismissed due to the fact that the evidence taken at the preliminary
hearing falls legally short of establishing implied malice sufficient to prosecute him for murder
iii. PEOPLE v. NIETO BENITEZ (1992)
i) Condenses language used to define implied malice, holding that: "malice may be implied when defendant does an act with a
high probability that it will result in death and does it with a base antisocial motive and a wanton disregard for human life."
iv. STATE v. WILLIAMS (1971)
i) Defendants' 17-month old died from a tooth abscess because defendants did not bring him to the doctor
ii) To distinguish this from an accident, court said:
a) A reasonable person would have (Williams' should have) recognized the risk to life
b) A reasonable person who knew what the Williams' knew or what reasonable person knows would have recognized the
risk to life
c) Failure to recognize these things constitutes simple negligence
a) Gross negligence = gross deviation from normal standards, not just a deviation
iii) Defendants were found guilty of manslaughter due to simple negligence - exception to the rule - Washington C/L
F. Felony Murder
i. Conceptual basis
i) Deterrence
a) Intended to deter negligent and accidental killings during commission of felonies
a) Counterarguments - How can you deter an unintended act? Also, most felons probably don't know of this rule
when they are committing felonies
b) Intended to deter dangerous felonies - punishing both accidental and deliberate killings resulting from felonies is the
strongest deterrent to committing felonies in the first place
a) Counterarguments - doubt as to whether increasing severity of punishment deters acts, makes more sense to
strike at harm actually intended by criminal - makes more sense to enhance the sentence for conduct that the
defendant has control over
ii) Transferred intent - intent to commit the felony is transferred to the act of killing
a) However, could argue that the mens rea is not the same - intent to burglarize cannot be equated with the malice
aforethought required for murder
iii) Retribution - strict liability view
a) Notion that the felon has exhibited an evil mind, thus justifying severe punishment
b) Extremely outdated view - we no longer equate the commission of crime with an overall evil tendency of a person
ii. In general
i) Once you are guilty of the felony, you are then strictly liable for the homicide which stems from the felony or escape from the
felony (with many exceptions)
ii) Original felony murder rule may have made sense when mens rea was through of as a general criminal disposition rather than
a specific attitude of the defendant towards each element of a specific offense - makes sense that it applied a kind of strict
liability for death resulting in commission of another felony
iii) MPC rejects felony murder, but 210.2 says something similar:
a) "committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such
recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by
force or threat of force, arson, burglary, kidnapping, or felonious escape."
iv) In most felony murder cases, you can come up with a pretty good non-felony murder case as well - extreme indifference
murder, for example
v) Must be a causal relationship between the felony committed and the death
iii. PEOPLE v. FULLER (1978)

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v) Must be a causal relationship between the felony committed and the death
iii. PEOPLE v. FULLER (1978)
i) Involves a common law concept that is contained in legislative doctrine - no inherently dangerous provision
ii) Defendants kill someone while fleeing from a burglary (the felony)
iii) Court upholds the conviction under CA's felony murder rule, but also makes statements against the rule:
a) Says felony murder rule should not be applied because the underlying felony (automobile burglary) is not dangerous to
human life
b) "Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting from a petty theft with
a premeditated murder." This result does not accomplish the original purpose of the felony murder rule, which was to
"deter those engaged in felonies from killing negligently or accidentally"
iv. PEOPLE v. HOWARD (Supreme Court CA 2005)
i) Involves common law doctrine/court made rule
ii) Howard kills someone in the course of high speed police chase
iii) Court says that second degree felony murder rule is a court-made rule, defined as: "A homicide that is a direct causal result of
the commission of a felony inherently dangerous to human life
iv) In determining whether a felony is inherently dangerous, the court looks to the elements of the felony in the abstract, not the
particular facts of the case/defendant's particular conduct, to determine whether the felony by its nature cannot be
committed without creating a substantial risk that someone will be killed. Examples:
a) Shooting at an inhabited dwelling, poisoning with intent to injure, arson of a motor vehicle, grossly negligent discharge
of a firearm, manufacturing methamphetamine, kidnapping, and reckless or malicious possession of a destructive device
(common law)
v) Court ruled that because Howard's felony could have been committed in a way not inherently dangerous to human life, he
cannot be guilty of felony murder
vi) Dissent (and some other states)
a) Says to look at defendant's specific actions - did these actions carry a substantial risk of death?
v. Res gestae doctrine: nearly all courts agree that the felony murder doctrine still applies even after a felony is technically
committed - for example, during the escape
G. Felony Murder: Merger Limitation
i) General concept - homicide merges into the underlying felony, therefore preventing a charge for felony murder
i) Felony murder instruction is not proper when the predicate felony is an integral part of the homicide and when, under the
prosecution's evidence, it is included in fact within the offense charged
ii) Purpose - not to elevate all felonious assaults resulting in death to second degree murder even where the felon does not act
with malice
i. PEOPLE v. ROBERTSON (Supreme Court CA 2004)
i) Defendant fired shots in the direction of group trying to steal his hubcaps
ii) Convicted of second degree murder in connection with the felony of discharging a firearm in a grossly negligent manner
a) Grossly negligent manner was specifically described as potentially resulting in injury or death to a person - inherently
dangerous
b) Abstractly, discharging a firearm in a grossly negligent manner is not inherently dangerous to life
iii) Court says there is no merger in this case because there is a collateral and independent felonious purpose - to threaten the
men away
iv) Gave the example of PEOPLE v. MATTISON - one prisoner gave another methyl alcohol - was not trying to kill anyone, just
make some money
v) Dissent:
a) Not fair to hold someone who wasn't trying to kill to a higher standard than someone who was - if he admitted to trying
to kill them because he was provoked this would have been a lesser offense
ii. STATE v. SOPHOPHONE (Supreme Court Kansas 2001)
i) In the process of escaping a robbery, Sophophone's co-conspirator Sysoumphone was killed by a police officer - Sop is charged
with felony murder in Sys's death
ii) Aggravated burglary is described as inherently dangerous in the statute
iii) No merger rule - felonious purpose was to steal the goods, not to kill his friend
iv) Sop was the proximate cause of Sys's death - police officer's shooting was not an abnormal response
v) Kansas is an agency state - said that felony murder rule does not apply when person who directly causes the death is a nonfelon
a) Minority of states have adopted the proximate cause theory for felony murder

VI. FORCIBLE RAPE

A. Force and Nonconsent
i. In general: definition
i) Rape requires:
a) Force or threat of force
a) Some split of authority on this subject - majority rule remains that force/threat of force still remains as an element
b) Small minority still holds that lack of consent is enough - in some states, lack of consent without force is a lesser
offense - force still helps to indicate lack of consent in these jurisdictions
c) 2 possible meanings of force:
i) Coercive force - to overcome another's will
ii) Physical force - only the force needed to propel your body into movement
b) Sex - as a general matter, any type of sex (oral, genital, anal) qualifies as sex
c) Lack of consent

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ii.

iii.

iv.

v.

b) Sex - as a general matter, any type of sex (oral, genital, anal) qualifies as sex
c) Lack of consent
a) Hierarchy of consent:
i) Enthusiastic consent
ii) Unenthusiastic consent
iii) Nonconsensual non-forcible consent
iv) Nonconsensual forcible consent
d) Resistance or a reason for not resisting - historical element
a) No longer a requirement in most states due to modern reforms - resistance could lead to increased harm to victim
b) Still remains relevant as evidence of force/lack of consent. Still have to prove lack of consent, and resistance could
help to prove this. Relevant elements have the tendency to make other elements more likely to have been
present
i) Resistance could be still be correlated with lack of consent - you would definitely still want to bring up
evidence of resistance if you were trying to prosecute for a rape - supports case, strongly implies that there
is lack of consent
e) Mens rea - many cases do not say anything about mens rea
a) Force - generally speaking, if someone is using force they will not be mistaken whether they are using force or not
b) Lack of consent - mens rea could come up here - could be mistaken about whether there was consent
i) Many courts say that recklessness is the mens rea required for lack of consent. Some say strict liability,
some say recklessness
c) Various standards:
i) Sherry Court - maybe negligence, but they need not decide
ii) MA courts in general - strict liability for rape cases
iii) M.T.S. case - negligence (not clear if gross or ordinary negligence)
iv) MPC and UK - recklessness
ii) Evidence considerations
a) Rape often comes down to question of conflicting testimony by plaintiff and defendant. Who has more of an incentive
to lie?
a) Plaintiff is there because she wants to be - going through a lot of hassle to be there, is there voluntarily
b) Defendant is there because he has to be - trying to avoid conviction/going to jail - might have more of an incentive
to lie
c) Need to look at specific circumstances - possibility that plaintiff could be looking for a civil judgment against
defendant for monetary considerations
MPC 213.1
i) A male who has sexual intercourse with a female not his wide is guilty of rape if:
a) He compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to
be inflicted by anyone...
STATE v. ALSTON (Supreme Court of North Carolina 1984)
i) Court concluded there was not enough evidence as to the element of force - court said threat of force was sufficient, but the
previous threats of violence were unrelated and irrelevant to the particular instance of rape
ii) Court said "the absence of a specific threat is not determinative in considering whether there was sufficient force in
whatever form to overcome the will of the victim. It is enough if the totality of the circumstances gives rise to a reasonable
inference that the unspoken purpose of the threat was to force the victim to submit to unwanted sexual intercourse"
a) However, in this case, absent evidence that the defendant used force or threats to overcome the will of the victim to
resist the actual sexual intercourse in question, a general fear was not enough to show that defendant used force
COMMONWEALTH v. BERKOWITZ (PA 1992)
i) Berkowitz and the victim knew each other in some capacity beforehand, victim says she said "no," which Berkowitz admits but
said she whispered/moaned "no," which he took to be thinly veiled encouragement
ii) Court says that absence of consent isn't enough to show force - therefore there is no express or implied threat - again, must be
determined based on the totality of the circumstances
a) Verbal protests may be relevant to the fact that intercourse was against victim's will, but not sufficient evidence of force
iii) New PA law prohibits sex in the absence of consent without force - offense is considered sexual assault and has a lesser
sentence
STATE OF NEW JERSEY IN THE INTEREST OF M.T.S. (1992)
i) M.T.S. says victim was awake, but only objected after they had been having sex for some time
ii) Supreme Court upheld the trial court's original conviction of second degree sexual assault - force above and beyond that
required to actually perform sex is not a required element - statute is unclear and leaves determination up to court
a) "Current judicial practice suggests an understanding of physical force to mean any degree of physical power or strength
used against the victim, even though it entails no injury and leaves no mark"
iii) Court says that affirmative and freely given consent can be given through actions and not necessarily words
iv) "State must prove beyond a reasonable doubt that there was sexual penetration and that it was accomplished without the
affirmative and freely-given permission of the alleged victim"
v) Mens rea required is negligence - "whether the defendant's belief that the alleged victim had freely given affirmative
permission was reasonable"
a) Focus of attention must be on defendant's action, shouldnt be up to plaintiff to prove that she didn't consent

B. Mens rea
i. General (but not universal) rule - "a person is not guilty of rape if he entertained a genuine and reasonable belief that the female
voluntarily consented to intercourse with him"
i) PEOPLE v. WILLIAMS (CA 1992) - reasonable mistake instruction should not be given "unless there is substantial evidence of
equivocal conduct on the part of the female" - in this case, wholly divergent accounts created no middle ground from which
Williams could argue the reasonably misinterpreted victim's conduct
ii. COMMONWEALTH v. SHERRY (MA 1982)

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ii. COMMONWEALTH v. SHERRY (MA 1982)

i) Defendants were charged with the crime of rape without aggravation
ii) Defendants want to claim that actual knowledge of lack of consent is required, so that a good faith mistake of fact could
negate the criminal intent in a defense to rape - court said they need not decide on this issue because defendants did not
request an instruction on reasonable good faith mistake of fact

VII.

SEXUAL ASSAULT LESS SERIOUS THAN RAPE

A. In General
i. MPC 213.4 Sexual Assault
A person who has sexual contact with another not his spouse, or causes such other to have sexual contact with him, is guilty of
sexual assault, a misdemeanor, if:
(1) He knows that the contact is offensive to the other person; or
(3) He knows that the other person is unaware that a sexual act is being committed; or
Sexual contact is any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual
desire
B. Mens Rea considerations
i. Alan and Betty hypo
i) Negligence - gross deviation from the standard of conduct a normal person would take - have to look to custom
ii) Recklessness - disregarding a substantial and unjustifiable risk - could you really consider this risk to be unjustifiable?
a) Also look at base antisocial motive
ii. Law sometimes criminalizes a large range of behavior - but if it really harmless, it is unlikely that there is going to be a complaint. If
it does get reported, this is an indication that Betty did think it was serious. It would be up to prosecutorial discretion.

VIII.

RAPE SHIELD LAWS

A. In General
i. Two broad questions
i) How is evidence of the complainant's past sexual behavior potentially relevant to deciding what happened in this case?
a) Not when evidence is dispositive, only whether it has some reasonably tendency to make some fact more or less likely
ii) When, if ever, should it be proper to bar a defendant from introducing relevant evidence that tends to make his guilt less
likely?
ii. STATE v. HERNDON (1988)
i) Rape shield laws have been enacted by every state. Generally speaking, these laws deny a defendant in a sexual assault case
the opportunity to examine the complainant concerning her prior sexual conduct [with third parties] or reputation [for sexual
conduct]. Also deny the defendant the opportunity to offer extrinsic evidence of the prior sexual conduct or reputation of the
complainant.
ii) Courts have almost always held that sixth amendment rights to confront witnesses/present evidence on a defendant's behalf
are not absolute, and that evidence of the prior sexual conduct of the complainant is only marginally relevant
iii) Policy underlying rape shield law:
a) Prevents defendant from harassing and humiliating the complainant with evidence of either her reputation for chastity
or of specific prior sexual acts
b) Evidence generally has no bearing on whether the complainant consented to sexual conduct with the defendant at the
time in question
c) Exclusion of the evidence keeps the jury focused only on issues relevant to the case at hand
d) Law promotes effective law enforcement because a victim will more readily report and testify in sexual assault cases if
she does not fear that her prior sexual conduct will be brought before the public
iv) Courts have also universally held that both cross-examination and witnesses brought on behalf of the defendant may show
prior consensual sex if that evidence shows a complainant's unique pattern of conduct similar to the pattern of the case at
hand or shows that the complainant may be biased or have a motive to fabricate the charges
iii. Arguments for rape shield:
i) Risk of wrongful acquittal (if jury draws wrong inference from complainant's sexual history)
ii) Embarrassment for complainant, who is required to reveal her sexual history
iii) Deterrence of even genuine rape complaints - concern about social goals
iv. Arguments against rape shield:
i) Risk of wrongful conviction (if jury lacks important, relevant evidence that complainant may be lying or mistake)
ii) Encouragement of false rape complaints
iii) 6th amendment guarantees defendant the right to present witnesses in his own defense - violation of this right may deprive
the defendant of a fair trial
v. Balancing test
i) The state's interest in enacting a statute is weighed against the defendant's constitutional interests
ii) Court has to weigh the interest of entering the evidence/preventing possible wrongful conviction against the possible negative
consequences to the victim
iii) 2-part test
a) Is there a material burden on cross-examination?
(a) If the burden is material - if the evidence does indeed add something to the defendant's case which is missing,
then
b) Court must balance the rights of the defendant to introduce the evidence against the government's rights to prevent the
evidence from being introduced, which include the interests of the victim

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evidence from being introduced, which include the interests of the victim
(a) Balancing puts the weight on the defendant's side of the scales - he is the one risking the loss of his liberty
vi. LEWIS v. WILKINSON (2002)
i) Question of whether to admit portions of diary
a) If it is evidence of past sexual activity, court has to determine whether or not the evidence is material to the facts in the
case, and whether the value of the evidence outweighs the negatives - whether "its inflammatory or prejudicial nature
does not outweigh its probative value"
b) *A federal court cannot overrule a state court's determination with regard to evidence - as a matter of state law,
evidence was excludable under the statute - court gets around the matter by saying it is a constitutional, therefore
federal, issue
c) Court concludes that there were constitutional conflicts in this case because of the confrontation clause - every
defendant has the opportunity to confront the witnesses against him

IX.

DEFENSES

A. Generally
i. Categories of defenses:
i) Mistake - Mens rea doesn't fall into any of the categories - "No, because"
ii) Elements of the crime are satisfied but there is something else that keeps it from being a crime:
a) Justification - I did something bad overall, but had to do it (self defense, necessity)
b) Excuse - what you did wasn't good, but we sympathize enough to not hold you responsible for it (insanity, duress) burden of proof on the defendant
B. Self-Defense: In General
i. General principle: you can use force in self-defense where otherwise it may be against the law
ii. A person may use force in self defense where such use of force is
Common Law

MPC

Reasonably believed [*]

Sincerely believed

To be necessary against imminent threat

To be Immediately necessary against threat

[if D's force non-deadly] of unlawful force

Of Unlawful force

[if D's force deadly] of death, serious bodily injury, Same - minus robbery and burglary
rape, kidnapping, robbery?, burglary?
And D is not the aggressor [*]

And D didn't provoke the use of force against himself in the same encounter

Even if D refused to retreat [*] (with regard to

lethal force

Unless knows he can retreat, or comply with a demand that he abstain from any
action he has no duty to take (with perfect safety) - except for retreat from your
own home

[*] - majority rule, minority rule follows MPC

i) If you make the first aggressive move/throw the first punch - you lose any claim to self-defense
a) Exception - if you start a fight without the purpose to cause serious bodily harm/death, and they pull out a gun - you are
not stripped of your right to self-defense
ii) MPC 3.09 (2) - no defense if the actor is reckless or negligent in having such belief - sincere belief has the effect of reducing a
crime
a) A substantial minority of states (including CA) provide that a sincere but unreasonable belief in the need for lethal selfdefense will downgrade murder to involuntary manslaughter
iii) MPC 3.04 (2)(c) - A person employing protective force may estimate the necessity thereof under the circumstances as he
believes them to be when the force is used, without retreating, surrendering possession, doing any other act which he has no
legal duty to do or abstaining from any lawful action
iv) There is no duty to comply with demands other than demands to leave or abstain
a) Example of Alan telling Betty "give me $10 or I'll shoot you" - Betty has the right to refuse, but she has to be afraid of
being shot, not just being robbed
v) MPC 3.05: Use of force for the protection of other persons
iii. Why would MPC encourage a less self-defense friendly approach?
i) Want to discourage people from using less-than-genuine self-defense
ii) Limit the opportunity for self-defense to be used as an excuse for straight up murder
iii) Want to protect the truly innocent who are framed/accused of threatening force, and even the bad guys who are threatening
you - they still don't deserve to be killed
iv) Want to protect innocent bystanders
iv. LANEY v. US (DC Ct. App. 1923)
i) "Looking for trouble" exception to self-defense - ties into idea of provocation - if you enter a situation where you know your
presence will cause trouble, you lose your right to self-defense
ii) Laney could have abstained from going back out onto the street, assuming that it was indeed the goal of the rioters to get him
off of the street in the first place - he could have safely retreated
iii) Facts of case aren't completely clear, but court ruled that Laney lost his right to self-defense when he went back out onto the
street - say that Laney knew that his presence there would cause trouble
iv) Under MPC 3.04 (2)(b)(i) - could possibly argue that Laney provoked the use of force against himself

Self-Defense: Reasonable belief - in general

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C. Self-Defense: Reasonable belief - in general

i. PEOPLE v. GOETZ (New York 1986)
i) Legal dispute: what constitutes a reasonable belief?
a) Court says that self-defense is available only when there is reasonable belief based on defendant's circumstances that
lethal force was required - objective element of reasonableness - defendant's circumstances undoubtedly encompass
past experience
b) Goetz argued that his background of previous muggings should be considered - also wanted a sincere belief standard "whether a defendant's beliefs and reactions were reasonable to him"
(a) Court says it must be a reasonable belief, not just a sincere belief
ii) NY law said that it was enough that he reasonably believed that the person was committing or attempting to commit a
robbery. Handing over the money wouldn't have prevented the robbery - that would have been the robbery
iii) Under the MPC he couldn't have shot them because you are not allowed to defend yourself against robbery unless he
seriously feared death or serious bodily injury, rape, or kidnapping - would have had to persuade the jury that he sincerely
believed that he was in danger of serious bodily injury
D. Self-Defense: Reasonable belief - battered woman syndrome
i. STATE v. NORMAN (North Carolina 1988)
i) Norman was convicted at trial - judge did not even give the jury a self-defense instruction - Supreme Court affirms the
conviction
ii) NC Supreme Court wanted to limit the expansion of the immediacy doctrine - regardless of what they thought should happen
to Norman, their job was to uphold the law
a) Supreme court has to look at whether expanding the doctrine would prompt more people to use the self-defense to kill when there is one dead body it's hard to determine what the facts actually were. With governor's clemency, people
would not be so sure that they would be excused since it occurs on a case-by-case basis
iii) Legal question: whether there was an imminence in the threat of serious bodily harm or death, and whether imminence
should be an element in self-defense at all
a) Appellate court - necessity to use lethal force = without lethal force harm will likely happen
b) Supreme court/MPC/Common law rule - must be necessary and imminently necessary to use lethal force = without
lethal force, harm will likely imminently happen
iv) Comes down to a question of proof/evidence - how do you prove you thought you were in substantial danger?
v) Rule: so long as there is no other choice that would substantially lower your chances of being killed/harmed/raped/etc.
a) Court said that Norman had other means of escape/opportunity to resort to other means of preventing further abuse of
her husband
E. Defense of Property: Non-Lethal Force
i. MPC 3.06
ii. Armored car hypo - guard would probably be justified to use force in defense of property, but not deadly force
F. Defense of Property: Lethal force
i. Common law rule - lethal force may not be used in defense of property
ii. MPC rule - Generally, deadly force cannot be used to protect property, unless:
i) Person is trying to eject you from your house - the person against whom the force is used is attempting to dispossess him of
his dwelling otherwise than under a claim of right to its possession (3.06 (3)(d)(i))
ii) The person against whom the force is used is attempting to commit or consummate arson, burglary, robbery or other
felonious theft or property destruction and has either employed or threatened deadly force against or in the presence of the
actor, or the use of force other than deadly force to prevent to commission or consummation of a crime would expose the actor
or another in his presence to substantial danger of serious bodily harm
iii) Mugging example - in theory, you would be justified in shooting a mugger in the back to prevent consummation of the crime
iii. Texas Penal Code 9.42 (deadly force to protect property) - A person is justified in using deadly force against another to
protectproperty, if he reasonably believes that the land or property cannot be protected or recovered by any other means
i) In those jurisdictions that allow lethal force in defense against robbery - could say that technically you are defending your
property - however, technically you are defending yourself against robbery/force
iv. Defense of property statutes act under the assumption that the likelihood of property being recovered isn't very good
G. Quantum of Proof in Defenses
i. The law may require the defendant to prove the defense, and possibly do so by a high quantum of evidence. All elements of the
crime must be proven by the government beyond a reasonable doubt, but as to defenses, there could be at least six different rules.
In all of them, defendant would have to introduce some evidence to support the defense, but then:
i) The government will have to prove beyond a reasonable doubt that the defense isn't applicable (the norm in most states as to
self-defense, and the MPC rule for most defenses) "Better that 10 guilty men go free than one innocent man go to prison" , or
ii) The government will have to prove by clear and convincing evidence that the defense isn't applicable "Better that three guilty
men go free than one innocent man go to prison", or
iii) The government will have to prove by a preponderance of the evidence that the defense isn't applicable "Better that one
guilty man go free", or
iv) The defendant will have to prove by a preponderance of the evidence that the defense is applicable (common-law rule, rule
as to self-defense in Ohio) "Better that one innocent man go to prison than one guilty man go free", or
v) The defendant will have to prove by clear and convincing evidence that the defense is applicable (the rule as to insanity in
federal criminal prosecutions and in many states) "Once it is proven that defendants have committed the crime, better that
three innocent-because- insane men get convicted than one guilty-because-sane man go free," or
vi) The defendant will have to prove beyond a reasonable doubt that the defense is applicable
H. Necessity: In General
i) Only accepted in about half the states
ii) In principle, leaves tremendous discretion to juries or judges since it invites a case-by-case weighing of whether "the harm or evil
sought to be avoided by [defendant's conduct] is greater than that sought to be prevented by the law defining the offense cha rged

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ii)
sought to be avoided by [defendant's conduct] is greater than that sought to be prevented by the law defining the offense cha rged
i) Highly particularized - depends on individual situation - have to weigh each aspect of what is going on
iii) There are some crimes which are unacceptable 99% of the time, but in some circumstances the balance weighs more in the favor of
violating petty laws in order to save some greater good
i) In this case, you may not even be arrested in the first place, depending on the situation
MPC 3.02

Common-Law (about half the states)

D believes - subjective

D reasonably believes - knowing standard - objective - negligent

mistake is no defense

Conduct is necessary
Conduct is necessary
(likely means (a) no alternative could reasonably be
(likely means (a) no alternative could reasonably be expected
expected to work, and (b) sufficiently likely that D's conduct to work, and (b) sufficiently likely that D's conduct will work
will work
To avoid harm

To avoid [imminent*] harm [brought on by natural forces*]

[limited to danger of personal injury*]

(a) harm sought to be avoided by D > harm sought to be

prevented by law (D's mens rea as to moral balancing of
harm doesn't matter 1 ) - harm is as D believed it to be

(a) harm sought to be avoided by D > harm sought to be

prevented by law (D's mens rea as to moral balancing of harm
doesn't matter)
[not including force against innocent*] [ not including serious
felony*]

(b & c only if no law deals with the specific situation)

(2) If actor was reckless or negligent in bringing about the
situation requiring a choice of harms, justification is
unavailable in a prosecution for any offense for which
recklessness or negligence establishes culpability
a) 1 - misjudgment of magnitude of harm might be excusable
b) In brackets - what some states do - no universal common law rule
c) Self defense is usually force against another to protect against a serious crime
(a) In the example of stealing someone's gun in order to protect yourself - MPC 3.04 protects against the use of force
upon or toward another person, not the taking of someone else's property- In this case, a necessity defense would
be more appropriate
d) Balancing of harms is not committed to the private judgment of the actor; it is an issue for determination at the trial (pp.
565)
i. NELSON v. STATE (Alaska 1979)
i) Court gives the instruction that a necessity defense exists when natural forces create a situation in which a person must
violate a law to avoid greater evil to himself or his property. The harm must be immediate and dire, and the offense is not
available where a reasonable alternative is available.
ii) Nelson was correct in stating that the necessity defense is available if a person acted in the reasonable belief that an
emergency existed and there were no alternatives available even if that belief was mistaken.
a) However, Nelson failed to make out a case for the necessity defense in the first place
iii) Rationale behind necessity is not that the person lacks the mens rea that the crime requires, but is a public policy issue - law
ought to promote the achievement of greater goods for society at the expense of lesser values
ii. Kidney hypo - Could you kidnap someone and steal their kidney under necessity if you are dying of kidney failure?
i) Under MPC:
a) Seems necessary - probably not anyone else out there willing to give you a kidney
b) Belief/reasonable belief - probably, defendant is dying
c) Harm - harm to be avoided is death - under MPC might not be imminent depending on situation
d) Only if no other law applies to this situation - may be laws against it, but there may not - might be a rare enough
situation that legislature did not address it
e) Harm sought to be avoided by kidnapping law - prevention of interference with individual liberty
(a) Question becomes - is prevention of death more important than interference with individual liberty coupled with
assault and pain?
(b) This kind of organ theft could also lead to a generalized fear in society - loss of confidence in the ability of the legal
system to protect your body from this type of harm
I. Necessity: Civil disobedience
i. UNITED STATES v. SCHOON (9th Circuit Court of Appeals 1991)
i) Defendants gained admittance to IRS office, where they chanted and splashed simulated blood to protest the conditions in El
Salvador - attended to assert a necessity defense, contending that their acts were necessary to protest American involvement
in El Salvador and avoid future bloodshed in the country
ii) Court said that this case involved indirect civil disobedience - protestors were not challenging the laws under which they are
charged - and necessity defense is not available for indirect civil disobedience
a) "the mere existence of a constitutional law or governmental policy cannot constitute a legally cognizable harm"
b) General harms that result from the targeted law or policy are too insubstantial an injury to be legally cognizable
c) The protesters' act alone was unlikely to abate the harm because the action was indirect
d) Legal alternatives will never be deemed exhausted when the harm can be mitigated by Congressional action
iii) If the criminal act cannot abate the threatened harm, society receives no benefit from the criminal conduct
iv) Court concluded that the litigants were trying to distort to their purposes an age-old common law doctrine meant for a very

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iv) Court concluded that the litigants were trying to distort to their purposes an age-old common law doctrine meant for a very
different set of circumstances
J. Necessity: Defense to murder
i. MPC rejects any limitations on necessity cast in terms of particular evils to be avoided or particular evils to be justified
ii. MPC seems hesitant to rule out homicide as a necessity defense - example of taking one life to save many - person could point out
that the object of the law of homicide is to save life, and that by his conduct he has effected a net saving of innocent live s.
i) Says that most people would think this was fair, and the law should permit such a choice
iii. Question of a utilitarian approach (do what it takes to avoid the greatest loss of life), v. Kantian approach (each person's life is as
important as the lives of other persons).
iv. THE QUEEN v. DUDLEY AND STEPHENS (1884)
i) It is not correct to say that there is any absolute or unqualified necessity to preserve one's life
a) Who would be the judge of this sort of necessity, and by what measure would the comparative value of lives be
measured?
ii) Duties impose on men the moral necessity, not of the preservation, but of the sacrifice of their lives for others
K. Theories of excuse
i) Jeremy Bentham - point of excuses is that they indentify situations in which conduct is non-deterrable, so that punishment
would be so much unnecessary evil
a) Since only the non-deterrable are excused, withholding punishment offers no comfort to those who are deterrable
ii) Hart - by confining liability to cases in which persons have freely chosen, excuses serve to maximize the effect of a person's
choices within the framework of coercive law, thereby furthering the satisfaction people derive in knowing that they can avoid
the sanction of the law if they choose
a) However, point of criminal law is to keep people from engaging in prohibited conduct, not to give them a choice
between complying with the law or suffering punishment
iii) Dressler - Underlying theories of excuse
a) An excuse defense is in the nature of a claim that although the actor has harmed society, she should not be blamed or
punished for causing that harm
b) As with justifications, no single theory explains the excuse defense, but excuses are far more plausibly defended on nonutilitarian grounds
(a) Causation theory - a person should not be blamed for her conduct if it was caused by factors outside her control if a person is not to blame for the cause of her actions, she is not to blame for the crime itself
(b) Character theory - punishment should be proportional to a wrongdoer's moral desert, and that desert should be
measured by the actor's character
(c) Free choice (or personhood) theory - a person may properly be blamed for her conduct if, but only if, she had the
capacity and fair opportunity to function in a uniquely human way, i.e., freely to choose whether to violate the
moral/legal norms of society - measured at the moment of the criminal act - too narrow?
i) Free choice = substantial capacity and fair opportunity to:
1) Understand the facts relating to her conduct
2) Appreciate that her conduct violates society's mores
3) Conform her conduct to the dictates of the law
L. Duress: Generally
i. While necessity defense is only accepted in about half of jurisdictions, duress is accepted in almost all
i) Duress also includes a choice of evils - have to decide between succumbing to the threat or performing the evil
ii. Typical situation in duress: "Do X or I'll hurt you/kill you"
MPC 2.09

Common-Law (Nearly all jurisdictions)

Threat of

Threat of "immediate" (which may include "impending")

Unlawful force (to self or other)

Death or serious bodily injury (to self or another)

That reasonably firm person would have been unable to resist Well-grounded (=reasonable) fear threat will be carried out

Probably no reasonable opportunity to escape threatened

harm

No reasonable opportunity to escape threatened harm

Is a defense against murder

Not a defense against murder (could still argue provocation manslaughter)

But not if recklessly placed self in situation where duress likely But not if recklessly placed self in situation where duress
(or negligent placed self in such situation where mens rea for likely (or negligent placed self in such situation where mens
crime is negligence)
rea for crime is negligence
This section does not preclude a defense of necessity
i) Immediacy may be a problem in common law jurisdictions
iii. UNITED STATES v. CONTENTO-PACHON (9th Circuit Court of Appeals 1984)
i) Defendant was told that failure to cooperate with drug running scheme would result in the death of his wife and child
ii) Court says that the element of immediacy requires that there be some evidence that the threat of injury was present,
immediate, or impending - more expansive than under self-defense
a) In this case, if the defendant had refused to cooperate, the consequences would have been immediate and harsh
iii) Court emphasized that the opportunity to escape must be reasonable - in this case it wasn't
iv) Court held in Contento-Pachon's favor
M. Necessity v. Duress
i. PEOPLE v. UNGER (ILLINOIS 1977)
i) Defendant escaped from a prison "honor farm" because he was threatened and sexually molested by other inmates, and also

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i) Defendant escaped from a prison "honor farm" because he was threatened and sexually molested by other inmates, and also
claims he was threatened with death if he reported this to prison authorities
ii) Distinction between duress and necessity:
a) Duress - source of coercive power is from human beings
(a) Generally requires an impending, imminent threat of great bodily harm together with a demand that the person
perform the specific criminal act for which he is eventually charged
(b) Necessity - the pressure on the defendant arises from forces of nature
iii) Court says that this is an example of necessity, because he was forced to choose between two evils which arose from the
actual and threatened homosexual assaults and fears of reprisal
iv) Duress defense would be applicable if a prisoner was coerced by the threat of imminent physical harm to perform the specific
act of escape
a) Lovercamp puts forth five conditions that must be met for a necessity instruction to be submitted to the jury:
1) Prisoner is faced with specific threat of death, forcible sexual attack or substantial bodily injury in the immediate
future;
2) There is no time for a complaint to the authorities or there exists a history of futile complaints which make any
result from such complaints illusory;
3) There is no time or opportunity to resort to the courts;
4) There is no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape
5) The prisoner immediately reports to the proper authorities when he has attained a position of safety from the
immediate threat
b) Court says that the conditions are relevant factors to be used in assessing claims of necessity, but the existence of each
condition as a matter of law is not necessary to establish a meritorious necessity defense
v) Court holds that the jury in this case should have been instructed on the necessity defense
N. Insanity: In general
i. Some inquiry comes before the proceeding - with regard to competence to stand trial
i) Purpose: whether you are competent to participate/assist in the legal proceedings, to help the attorney with the case
ii) Consequence: locked up pending trial
ii. Some inquiry comes during the proceedings whether someone was competent at the time they committed the crime
i) Purpose: Determining whether you can be held morally culpable for the actions you took
ii) Consequence: generally acquitted not guilty by reason of insanity locked up at mental institution
iii) General model: if you are found insane you are not at all guilty of the crime theory is that you would be locked up until you
were no longer a danger to others (whenever that may be)
a) May be very hard to predict when you will stop being a danger
b) If you are not guilty by reason of insanity, you cannot be punished
iii. Some inquiry before execution - whether you are competent to be executed
i) Purpose: Someone ought not be punished by death if he is not capable of grasping the seriousness of the punishment
ii) Consequence: Puts off execution, not necessarily permanently
a) Has nothing to do with deterrence - more retributive - only sensible to execute someone if they are aware they are
being punished
iv. Problems of proof - in many situations it is in the defendant's best interest to be declared insane
i) Keeps you from being executed
ii) Keeps you from being convicted although you will be locked up in a mental institution anyway
iii) Puts the trial on hold but this could be good or bad you will be locked up in a mental institution pending trial so it just
extends the time of your overall incarceration
iv) Consequently, there is a good deal of legislation regarding the standard of proof required, and many jurisdictions have gone
more pro-prosecution by saying that defendant must prove his insanity by clear and convincing evidence
v. Civil commitment proceedings might be locked up through a civil commitment proceeding because you present a danger to
yourself or others separate from criminal conviction
i) Proven by clear and convincing evidence to suffer from some mental disease, and are a danger to yourself or others
vi. Alternate argument - insanity can negate mens rea
i) If you believe you are, for example, shooting at an alien and not a person, the mens rea requirement as to the element of
killing a PERSON is not satisfied for homicide - you can get off this way
ii) You still have the required actus reus, but are severely mistaken as to the crime you are committing
iii) Making this argument shifts the burden of proving beyond a reasonable doubt
a) If you are arguing that you didnt have mens rea, prosecution has to rebut that beyond a reasonable doubt
b) If you are trying to prove insanity, you (defense) have to prove by clear and convincing evidence that you are insane
iv) Defense lawyer should look for ways to get you off without using the insanity defense - you would plead insanity, but also not
guilty because of lack of mens rea - lack of mens rea argument is stronger
vii. STATE v. JOHNSON (S. Ct. Rhode Island 1979)
i) Court is deciding whether to abandon M'Naughten test, and ends up adopting a version of the MPC insanity defense
viii. Insanity tests:
MNaughten

Defect of reason, from disease of

mind limitation

So D did not know nature and quality of act or

not know that what he was doing was wrong

Irresistible
impulse

Diseased condition of the mind

D abstractly knows that a given act is wrong, but is driven by insane

impulse to commit act

Product

Mental disease or defect

Of which Ds act is the product

MPC 4.01

Mental disease or defect

That leads D to lack substantial capacity to appreciate the

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MPC 4.01

Mental disease or defect

criminality/wrongness of conduct, or
To conform conduct to requirements of law

i) Under all prongs, you still need a doctor's determination of insanity

ix. Explanations/criticisms:
i) M'Naughten
a) There are people who could know the nature and quality of their crime, but cant help it/cant resist seems to be all-ornothing conceptualization - leads to irresistible impulse test
b) Severely restricts expert testimony
ii) Irresistible impulse
a) Produces the misleading notion that a crime impulsively committed must have been perpetrated in a sudden and
explosive fit - excludes far more numerous instances of crimes committed after excessive brooding and melancholy
iii) Product test
a) Mental disease doesnt have to coerce you into doing something, Ds action must just be the product
b) Criticism could have someone with the same mental disease/defect who would not be compelled to act in the same
way we expect people to be able to control their impulses in a considerable measure. Could find people culpable who
did not exercise the control they were capable of.
1) There could be someone who is subject to some mental disease or defect but at the same time is capable of
controlling themselves
c) Some criticism that testimony couched in terms of the legal conclusion that an act was or was not the product of mental
disease invited the jury to abdicate its responsibility as ultimate decision maker
iv) MPC 4.01
a) Reflects the notion that no test is workable that calls for complete impairment of ability to know or control
1) Uses the word "appreciate" rather than "know," in order to convey a broader sense of understanding than simple
cognition
i) For example - young child may know that they are pulling the trigger of a gun and may know that this is bad,
but may not appreciate the gravity of the result
b) Trying to set up as a matter of degree - attempt to soften the M'Naughten test - attempts to be somewhat of a midpoint
c) But, what is a substantial capacity?
1) Some appreciable magnitude when measured by the standard of humanity in general, as opposed to the reduction
of capacity to the vagrant and trivial dimensions characteristic of the most severe afflictions of the mind
d) MPC expressly excludes sociopathy from coverage - matter of legal policy that cannot be resolved as a question of fact
or medical terminology
v) "Mental disease or defect"
a) Definition is a question of legal, moral, and policy - not of medical - judgment
x. The best way to determine what is going on inside a person's mind is by their own testimony - but they have a huge incentive to lie
xi. You can be forced to take medication in order to stand trial pp.617-618 as long as it is a serious enough crime (but not a really
high burden for the serious crime)
i) On the other hand, if the person refuses to take the medication, they would just be locked up in an institution until they could
stand trial

X.

ATTEMPT

A. In general
i. Incomplete attempt: The actors does some of the acts that she set out to do, but then desists or is prevented from continuing by an
extraneous factor
ii. Complete attempt: The actor does every act planned, but is unsuccessful in producing the intended result (e.g. she shoots and
misses the victim)
iii. Renunciation/abandonment: When is it that an attempt is considered to have been stopped? You are no longer liable for intent
because you have abandoned the activity
iv. Theories/justification of punishing attempt (Andrew Ashworth). Criminal liability should be based upon...
i) Intent principle: Individuals should be held criminally liable for what they intended to do, and not according to what actually
did or did not occur
ii) Belief principle: Individuals should be judged on the basis of what they believed they were doing, not on the basis of the actual
facts and circumstances which were not known to them at the time
v. MPC 5.01 summary at to attempt
i) Purpose as to conduct
ii) Purpose or belief as to result (common law doesn't allow for belief)
iii) Substantial step strongly corroborative of the purpose
a) Not what is left to do, but what has been done
iv) Same mens rea as crime as to attendant circumstances; when crime is factually impossible, focus is on circumstances as D
believes them to be
B. Mens Rea as to attempt
i. PEOPLE v. GENTRY (Illinois 1987)
i) Gentry and Hill are arguing, Gentry claims he accidentally spilled gasoline on Hill, Hill sets herself on fire while standing near
the stove
ii) Doesn't seem plausible this is actually an accident - if Gentry had intentionally set her on fire, this would be attempted murder
iii) Gentry was initially convicted - appealed - saying that the crime of attempted murder requires a showing of a specific intent to
kill
iv) Court says that attempted murder requires specific intent to bring about the harm that is a necessary element of homicide - to
kill

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ii.

iii.

iv.

v.

vi.

vii.

kill
a) Therefore, lower court should have only given the instruction with regard to specific intent to kill
b) Seems like knowledge should suffice - did something knowing it would killbut it doesn't
1) However, attempted murder isn't just something that would have been murder if it hadn't been averted - has to
be specific intent to kill
BRUCE v. STATE (Maryland 1989)
i) Three men entered shoe store attempting to rob owner - at one point owner ducked and tried to get out of the way, possibly
bumped Bruce (who had the gun), and was subsequently shot in the stomach
ii) Trial court finds Bruce guilty of attempted first degree felony murder
iii) Appellate court says that "under Maryland law, a criminal attempt consists of a specific intent to commit the offense coupled
with some overt act in furtherance of the intent which goes beyond mere preparation"
a) Furthering of the idea that attempted murder requires an actual intent to bring about the end result
b) Because a conviction for felony murder requires no specific intent to kill, it follows that because a criminal attempt is a
specific intent crime, attempted felony murder is not a crime in Maryland
c) Could be found guilty of attempt to commit voluntary manslaughter - still have the intent, even though you don't have
the malice
1) Involuntary manslaughter cannot be attempted - no intent to kill
d) Underlying crime must have intent/purpose as its mens rea
MPC 5.01 (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:
(a) Purposely engages in conduct that would constitute the crime if the attendant circumstances were as he believes them
to be; or
(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
1) Not recklessness - belief that a substantial or unjustifiable risk
2) Mens rea - belief- kind of like purpose/knowledge - although it can't be knowledge because it doesn't really
happen
(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
1) A small number of states and some federal courts have adopted the substantial step formula of (1)(c)
(2) Conduct that may be held substantial step under subsection (1)(c): Conduct shall not be held to constitute a substantial step
under Subsection (1)(c) of this section unless it is strongly corroborative of the actor's criminal purposethe following, if
strongly corroborative of the actor's criminal purpose, shall not be held insufficient as a matter of law:
(a) Lying in wait, searching for or following the contemplated victim of the crime
(b) Enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission
(c) Reconnoitering the place contemplated for the commission of the crime
(d) Unlawful entry of structure, vehicle or enclosure in which it is contemplated that the crime will be committed
(e) Possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use
or which can serve no lawful purpose of the actor under the circumstance
(f) 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
(g) Soliciting an innocent agent to engage in conduct constituting an element of the crime
1) Subsection (2) has not been widely followed
(3) Renunciation of a criminal purpose
Common law = specific intent/purpose
MPC = more broad - just have to have knowledge/purpose - in reality - knowledge that something will happen without purpose is
actually rare
(1) Culpability is doing something that you know could lead to a certain result - belief is actually very very close to knowledge just not technically knowledge because it hasn't happened
(2) Belief (MPC) = equivalent of knowledge for attempt
Commentary to MPC 5.01 - "If the defendant manifests a purpose to engage in the type of conduct or to cause the type of result
that is forbidden by the criminal law, he has sufficiently exhibited his dangerousness to justify the imposition of criminal sanctions,
so long as he otherwise acts with the kind of culpability that is sufficient for the completed offense. The objective is to select out
those elements of the completed crime that, if the defendant desires to being them about, indicate with clarity that he poses the
type of danger to society that the substantive approach is designed to prevent"
i) Instrumental approach - we want people to be punished whose attempt shows them to be as dangerous as if they had actually
committed the crime.
HIV example - S knows he has HIV, and rapes a woman - is he guilty of attempted murder? (p. 752 #7)
i) This is assuming that if woman got HIV she would die
ii) Seems like S would be off the hook under the MPC - his actions were reckless, but far from certain - he presumably did not
have the belief that he was going to infect her/kill her
iii) If she died and he was prosecuted for reckless/depraved heart murder, he would probably be on the hook
Statutory rape example - p. 754 #2-3 - In statutory rape, the completed crime is having sex with someone who is underage - purpose
doesnt have to be specific to the element of the crime, just to the end result - purpose extends to the conduct of the actor and to
the results that his conduct causes

C. Distinguishing preparation from perpetration

i. COMMONWEALTH v. PEASLEE (Supreme Ct. MA 1901)
i) D placed combustible items in building in a way that if they were lighted would have caused fire to building. While D was a
quarter of a mile from the building, he changed mind.

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ii.

iii.

iv.

v.

quarter of a mile from the building, he changed mind.

ii) Court held: No attempt because lacked present intention to set fire. Here D was not dangerously/ proximately closed by.
iii) Test: dangerous proximity test
(a) Present intent to accomplish the crime without much delay, and to have had the intent at a time or place where he was
able to carry it out.
(b) Want to commit crime then and there
(c) Here D was mile away, so not met (Nb: this was in 1901)
iv) Nb: If crime is thwarted by police intervention OR the Ds mistake of judgment after the D has set in motion forces that would
bring about the crime, then will have present intent. And D will be liable for attempt.
v) D frightened by the police as he was about to light further evidence of present intent etc.
vi) Incomplete attempt dangerous proximity test
PEOPLE v. RIZZO (Ct. App. NY 1927)
i) D not guilty of attempted robbery because could not find the person the D wanted to rob. Here D not in dangerous proximity
to person D wanted to rob.
ii) Attempted robbery.
iii) Mens rea D had intent to commit robbery.
iv) Actus reus Test applied: dangerous proximity test
v) Rationale: Not liable unless they had no more opportunity to change their ways - defendants never had the opportunity to
commit the crime
PEOPLE v. MILLER (Sup. Ct. CA 1935)
i) Not guilty of attempted murder where D threatened to kill Jean, then showed up at the hob fields with a gun, did not aim rifle
at Jean, did not kill Jean when he had the chance. Not an unequivocal act of attempted murder
(a) Test: Unequivocability test with certainty that D come to the field to carry out threat to kill Jean?
ii) If apply dangerous Proximity test (Peaslee) - fail - although intent at a time and place where he was able to carry it out, did not
have present intent to kill now (here did not aim rifle)
STATE v. REEVES (Supreme Court of Tennessee 1996)
i) Two 12-year old girls bring rat poison to school, show it to other classmates disclosing their intention to put it in the teacher's
coffee - court finds them guilty of attempt to commit second degree murder
ii) TN legislature had not enacted the MPC examples into law, but they can still be used as powerful logical arguments
iii) Girls' actual purpose could have been something else - but this is up to the jury to decide
iv) Actus reus - need to have a substantial step that is "strongly corroborative - " says that this was not the case here
(a) The less likely an attempt is to succeed, the less likely it is that the step is strongly corroborative
(b) As to corroboration, need to look at whether or not there is an alternative, and how plausible the alternative is - need to
look to this for consistency in the rule (alternative to what?)
Substantial step test:
i) The fact that further steps must be taken before the crime can be completed does not preclude a finding that the steps
already undertaken are substantial
ii) Although it is intended that the requirement of a substantial step will result in the imposition of attempt liability only in those
instances in which some firmness of criminal purpose is shown, no finding is required as to whether the actor would probably
have desisted prior to completing the crime
iii) Firmness of a criminal purpose is intended to be shown by requiring a substantial step, while problems of proof are dealt with
by the requirement of corroboration

D. Defenses to attempt: Impossibility

i. PEOPLE v. THOUSANDS (Supreme Court of Michigan 2001)
i) Thousand was corresponding with someone he thought was a 12-year old girl, but who was actually a sheriff's deputy
ii) Prosecuted for attempted distribution of obscene material to a minor - court held that if you believe the facts are a certain
way, (creating an illegal situation) then you can be guilty of the attempted crime
iii) Wasn't charged with attempted sex with a minor because this actus reus would probably have been more difficult to prove would be more difficult to point to/prove a substantial step - there was no question as to the actus reus of sending the photos
ii. Modern common law - 3 types of impossibility
i) Factual impossibility - something that couldn't have factually happened (for example, trying to shoot someone with an
unloaded gun)
(a) No defense
ii) Mixed legal impossibility - for example, thought that you were stealing property that was actually your own - you are still on
the hook - courts and commentators have come to the conclusion that 1 and 2 are essentially the same
(a) No defense
iii) Pure legal impossibility - actor engages in conduct that he believes is criminal, but is not actually prohibited by law - for
example, Thousand thought that it was a crime to distribute explicit material to 15-year olds, but the law was actually for
children 13-years old and younger
(a) Is a valid defense
iii. Hypo - 19-year old girl tells you she's 17 and you have sex with her, thinking it's statutory rape
i) Technically, you would be guilty of attempted statutory rape - but a prosecutor would probably not prosecute in this case
iv. Hypo - Voodoo case - can you be guilty of attempted murder for attempting to inflict a voodoo curse on someone?
i) Under MPC this would seem to be the case - if there is evidence that you believe in the magic, then the substantial steps
would be strongly corroborative of the purpose - MPC points to the situation as the actor believes it to be
ii) In theory, if you do something with the purpose of killing someone and are unsuccessful - the purpose is still there - you could
potentially end up trying something else that is more likely to work
E. Defenses to attempt: Abandonment
i. In general
i) Abandonment : Attempt :: Self-Defense : Homicide
(a) Mens rea and actus reus are still satisfied

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(a) Mens rea and actus reus are still satisfied

ii) MPC 5.01(4)
(a) renunciation of criminal purpose is not voluntary if it is motivated, in whole or in part, by circumstances, not present or
apparent at the inception of the actor's course of conduct, that increase the probability of detection or apprehension or
which make more difficult the accomplishment of the criminal purpose. Renunciation is not complete if it is motivated
by a decision to postpone the criminal conduct until a more advantageous time or to transfer the criminal effort to
another but similar objective or victim
ii. Abandonment of a complete attempt - 5.01(4) seems to say that you can even abandon a complete attempt - for example, shoot at
someone, miss, and then renounce because you decided what you were doing was wrong
iii. COMMONWEALTH v. MCCLOSKEY (Superior Court of PA 1975)
i) McCloskey was a prisoner planning to escape from prison - he cut barbed wire, and prepared a bag full of civilian clothing, but
as he was about to get to the prison wall, he decided to stop and go back. He afterward told a guard of his original intention
to escape.
ii) Court finds that McCloskey was not guilty of attempt to escape because he was only contemplating the escape and had not
yet committed the act
(a) Under the MPC he would have probably been guilty - admitted purpose and took a substantial test strongly
corroborative of his purpose
iii) Dissent says that abandonment should just be seen as negating the substantial step (a covert way for courts to determine
abandonment), but instead abandonment should be seen as a separate test in itself

XI. CONSPIRACY
A. In general
i. Reasoning that concerted action both increases the likelihood that the criminal object will be successfully attained and decreases the
probability that the individuals involved will depart from their path of criminality
ii. If you conspire with someone, you are guilty of crimes committed by the other people in furtherance of the conspiracy, even i f it
wasn't the particular crime you conspired to do
iii. Generally speaking, three elements:
1) Agreement between parties - doesn't have to be express or signed in writing
(a) Mens rea - purpose to commit underlying crime
2) To commit a crime
(a) Mens rea - purpose to commit underlying crime
3) *Overt act in furtherance of the crime
(a) Some jurisdictions - no overt act requirement
(b) MPC - overt act requirement only for 3rd degree felonies or misdemeanors
i) Presumably makes it easier to prove first and second degree felonies
(c) Doesn't have to be an overt act by the defendant - can be one of the other co-conspirators
(d) Overt act need not be a criminal act
(e) Common law - Pinkerton - every conspirator is guilty for any criminal act related to the furtherance of the conspiracy,
that is reasonably foreseeable
i) Allows you to be liable for someone else's actions
iv. PEOPLE v. CARTER (Supreme Court of Michigan 1982)
i) Criminal conspiracy - a partnership in criminal purposes - a mutual agreement or understanding, express or implied, between
two or more persons to commit a criminal act or to accomplish a legal act by unlawful means
ii) Says that the crime is complete upon formation of the agreement - no need to establish any overt act
iii) Twofold specific intent is required - intent to combine with others, and intent to accomplish the illegal objective
iv) Guilt or innocence of a conspirator does not depend on the accomplishment of the goals of the conspiracy
v. PINKERTON v. UNITED STATES (Supreme Court of the US 1946)
i) There was no evidence to show that one of the Pinkerton brothers participated directly in the commission of the substantive
offenses
ii) Theory that each petitioner could be found guilty of the substantive offenses if it were found at the time those offenses were
committed both were parties to an unlawful conspiracy and the substantive offenses charged were in fact committed in
furtherance of it
(a) Basically, as long as there is an agreement, actions by either party could lead to a conspiracy charge for the other
iii) "An overt act of one partner may be the act of all without any new agreement specifically directed to that act." Act
(a) Is done in furtherance of the conspiracy
(b) Falls within the scope of the unlawful project
(c) Could be reasonably foreseen as a necessary or natural consequence of the unlawful agreement
B. Conspiracy: Mens rea
i. General mens rea requirement
i) MPC: intent that the crime/predicate offense be committed
ii) Common law
(a) Generally, purpose is required
(b) In some jurisdictions - Lauria rule - intent, but only knowledge required for serious crimes
ii. Attendant circumstances
i) For example - statutory rape - if encouraging someone else to have sex with someone who is underage - do you have to know
how old they are? Since statutory rape is strict liability, is conspiracy the same?
(a) Common Law Rule #1: Same as underlying crime
(b) Common Law Rule #2: Knowledge is required

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(a) Common Law Rule #1: Same as underlying crime

(b) Common Law Rule #2: Knowledge is required
(c) MPC doesn't answer this question
iii. PEOPLE v. SWAIN (Supreme Court of CA 1996)
i) Swain and Chatman both fire shots from a car - 15-year old victim is killed
ii) Jury finds Chatman guilty of second degree murder, Swain only guilty of conspiracy - seems to contradict Pinkerton
iii) Court held that due to the nature of implied malice murder, it would be illogical to conclude that one can be found guilty of
conspiring to commit murder where the requisite element of malice (intent) is implied
(a) A conviction of conspiracy to commit murder requires a finding of intent to kill
iv. PEOPLE v. LAURIA (CA 2nd district Ct. App. 1967)
i) Lauria ran an answering service, and he knowingly provided his services to women he knew were prostitutes
ii) Court says that generally, just knowledge that you are furthering illegal activity is not enough
iii) Factors court talks about:
(a) Knowledge and a stake in the venture strongly implies purpose
(b) Intent may be implied when the volume of the business is grossly disproportionate to any legitimate demand
(c) No legitimate use for the goods or services exists - can infer purpose the crime be accomplished because you are
presumably making money off of something that can't possibly be legal
i) Raises inference that you want to promote the legal activity - otherwise you wouldn't make any money
iv) In this case, there is insufficient evidence that Lauria intended to further the prostitutes' criminal activities - therefore no
conspiracy

C. Conspiracy: Actus reus

i. In general
i) Mere presence is not enough to get you on the hook for conspiracy - what else is required?
ii) Co-conspirators' statements made outside of court can be admitted as evidence - not considered heresay
ii. COMMONWEALTH v. AZIM (PA 1983)
i) Azim was driving a car, and his two friends in the car robbed and assaulted a man on the sidewalk - Azim claimed he was just a
driver and had no knowledge of his passengers' criminal activity
ii) Azim is appealing the jury verdict by saying there is not enough evidence for a reasonable jury to have accepted the
prosecution's story - court of appeals says there was
(a) Azim was a getaway driver - his job was to do just this
iii. COMMONWEALTH v. COOK (MA 1980)
i) Cook rapes the victim when his brother is standing nearby - is there evidence of an agreement enough to hold the brother
responsible for conspiracy to commit rape?
ii) Court says it is more reasonable to assume that the rape was a spontaneous act and therefore there was no agreement (actus
reus) between the brothers
iii) Court does say that brother could be guilty through accomplice liability
iv) The fact that the defendant may have aided and abetted the crime does not establish a conspiracy - in this case, the defendant
became implicated in the crime as an accomplice after it had commenced without any advance knowledge that it was to occur

XII.

ACCOMPLICE LIABILITY

A. In general
i. Accomplice is held liable for the crime of the primary actor, but as an accomplice - on the hook for the same penalty
i) The secondary party's liability is derivative, which is to say, it is incurred by virtue of a violation of law by the primary party to
which the secondary party contributed - his liability must rest on the violation of law by the principal
ii. For our purposes, treat everyone except accessory after the fact as an accomplice
iii. Aiding and abetting = complicity
iv. General rule under C/L and MPC is that you have to have the purpose (MPC) or knowledge (some jurisdictions) that you are aidi ng
the other person in his criminal conduct
i) MPC 2.06(4) When causing a particular result is an element of an offense, an accomplice in the conduct causing such result is
an accomplice in the commission of that offense, if he acts with the kind of culpability, if any, with respect to that result that is
sufficient for the commission of the offense
v. Mens rea requirements:
Mens rea required..

Attempt

Conspiracy

Accomplice

As to the conduct

Purpose

Purpose to accomplish underlying crime / some CL

knowledge as to serious crimes (Lauria)

Purpose/Some CL
knowledge

As to the result

Purpose (MPC belief)

Purpose

Same as underlying
crime

As to the attendant
circumstances

Same as underlying crime

1) Knowledge or purpose
2) Same as underlying crime

? Not litigated

i) Why would jurisdictions that are strict liability toward statutory rape not want to have strict liability toward aiding and
abetting statutory rape?
(a) If the purpose of aiding and abetting is that you are helping someone's crime, you should at least have some knowledge
that they are actually committing the crime
(b) Don't want to establish liability for something as simple as saying "she's cute" or something along those lines, or perhaps
providing a place for two people to go to have sex if one is underage (but you presumably don't know)

Mens rea: Offenses not requiring intent

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providing a place for two people to go to have sex if one is underage (but you presumably don't know)
B. Mens rea: Offenses not requiring intent
i. RILEY v. STATE (Alaska Ct. App. 2002)
i) Two men open fire on people surrounding a bonfire - evidence is not sufficient to prove which of the defendants' weapons
fired the injuring shots - both are prosecuted for aiding and abetting
ii) One of them definitely did it - could find liability under Pinkerton, therefore they are both liable for the same crime
iii) The underlying crime here did not require purpose to bring about the result - it is enough that they were reckless (first-degree
assault)
iv) With regard to the result of the conduct, the government must only prove that the accomplice had whatever culpable mental
state is required for the underlying crime - in this case, recklessness
v) Intent is only required with regard to intent to aid and abet the crime - not as to the result of the crime
C. Natural-and-Probable-Consequences Doctrine
i. STATE v. LINSCOTT (Sup. Ct. Maine 1987)
i) Linscott accompanies three of his friends to the residence of a drug dealer, with the plan to rob him - one of the friends ends
up shooting and killing the drug dealer, contrary to the established plan
ii) Linscott says that he was aiding and abetting with the intent to rob, without the knowledge that there was going to be a death
or a purpose to bring about the death
iii) Court said it was clear that he aided with the robbery, and the clear and probable consequence of the robbery was homicide
iv) Four step process in determination:
1) Must decide if primary party committed the target offense
2) If so, jury must determine if the secondary party was an accomplice in the commission of the target offense
3) Next, must determine if primary party committed another crime or crimes beyond the target offense
4) Finally, must determine whether the latter crimes, although not necessarily contemplated at the outset, were
reasonably foreseeable consequences of the original criminal acts encouraged or facilitated by the aider and abettor
v) Could also make a good argument in this case for depraved heart murder
vi) Natural and probable is more or less the same thing as reasonably foreseeable
D. Accomplice Liability: Actus reus
i. In general
i) Mere presence isn't enough to make you liable under aiding and abetting, but it only takes a little bit more
ii. STATE v. HOSELTON (Sup. Ct. W. VA 1988)
i) Hoselton's friends stole items off of a barge - question was whether or not he was a lookout - if he was he would have been
liable
ii) Court concludes that Hoselton's presence at the crime was presence alone, and there was no evidence of any extra help on his
part
1) Even if he supported his friends' robbing of the barge inside his head, there is no evidence of any pre-arrangement
2) Doesn't split the loot - no stake in the venture - not being compensated for any acts he might have taken
iii. STATE v. VAILLANCOURT (Sup. Ct. NH 1982)
i) Defendant stood by and watched as his friend attempted to break into a house, speaking to him intermittently
ii) Court finds that Vaillancourt had mere presence at the scene of the crime - only aided by accompanying his friend to the scene
of the crime and watching
iii) Very fact-specific determination
iv) Dissent:
1) Said he was probably aiding by some prearrangement, and his presence might have emboldened his friend
2) Verbal encouragement is considered by the MPC to be a form of aid
3) Even if there is not necessarily safety in numbers, there is encouragement in numbers
iv. WILCOX v. JEFFERY (England 1951)
i) Allegation that Wilcox provided encouragement to the illegal saxophonist, and helped him out in his illegal conduct by giving
him more publicity
ii) Court says that the mens rea for aiding is to have the purpose of promoting someone else's illegal conduct
iii) As to the result, just need to have the mental state as required by the underlying offense
v. STATE v. HELMENSTEIN (Sup. Ct. ND 1968)
i) Underlying crime was burglary of a convenience store - court found the defendant guilty as charged, but the conviction is
overturned
ii) Five of the other participants testify against the defendant - but in North Dakota, there is a bar on accomplice testimony
unless it is otherwise corroborated
iii) All five other participants were accomplices - complicit in committing the crime and helping the others evade punishment therefore, their testimony against Helmenstein was not admissible and there is not enough evidence to convict

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Questions
Sunday, November 25, 2007
3:48 PM

1) Homicide - do we need to know the common law history of homicide?

- Likewise - common law history/evolution of felony murder rule
2) Justification or excuse for provocation defense - we're not justifying or excusing the conduct - so is it
both a partial justification and a partial excuse?
3) Arguments for and against felony murder rule?
4) Justifications behind punishing attempt?

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A. Felony Murder
i. Conceptual basis
i) Deterrence
a) Intended to deter negligent and accidental killings during commission of felonies
a) Counterarguments - How can you deter an unintended act? Also, most felons probably don't know of this rule
when they are committing felonies
b) Intended to deter dangerous felonies - punishing both accidental and deliberate killings resulting from felonies is the
strongest deterrent to committing felonies in the first place
a) Counterarguments - doubt as to whether increasing severity of punishment deters acts, makes more sense to
strike at harm actually intended by criminal - makes more sense to enhance the sentence for conduct that the
defendant has control over
ii) Transferred intent - intent to commit the felony is transferred to the act of killing
a) However, could argue that the mens rea is not the same - intent to burglarize cannot be equated with the malice
aforethought required for murder
iii) Retribution - strict liability view
a) Notion that the felon has exhibited an evil mind, thus justifying severe punishment
b) Extremely outdated view - we no longer equate the commission of crime with an overall evil tendency of a person
ii. In general
i) Once you are guilty of the felony, you are then strictly liable for the homicide which stems from the felony or escape from the
felony (with many exceptions)
ii) Original felony murder rule may have made sense when mens rea was through of as a general criminal disposition rather than
a specific attitude of the defendant towards each element of a specific offense - makes sense that it applied a kind of strict
liability for death resulting in commission of another felony
iii) MPC rejects felony murder, but 210.2 says something similar:
a) "committed recklessly under circumstances manifesting extreme indifference to the value of human life. Such
recklessness and indifference are presumed if the actor is engaged or is an accomplice in the commission of, or an
attempt to commit, or flight after committing or attempting to commit robbery, rape or deviate sexual intercourse by
force or threat of force, arson, burglary, kidnapping, or felonious escape."
iv) In most felony murder cases, you can come up with a pretty good non-felony murder case as well - extreme indifference
murder, for example
v) Must be a causal relationship between the felony committed and the death
iii. PEOPLE v. FULLER (1978)
i) Involves a common law concept that is contained in legislative doctrine - no inherently dangerous provision
ii) Defendants kill someone while fleeing from a burglary (the felony)
iii) Court upholds the conviction under CA's felony murder rule, but also makes statements against the rule:
a) Says felony murder rule should not be applied because the underlying felony (automobile burglary) is not dangerous to
human life
b) "Such a harsh result destroys the symmetry of the law by equating an accidental killing resulting from a petty theft with
a premeditated murder." This result does not accomplish the original purpose of the felony murder rule, which was to
"deter those engaged in felonies from killing negligently or accidentally"
iv. PEOPLE v. HOWARD (Supreme Court CA 2005)
i) Involves common law doctrine/court made rule
ii) Howard kills someone in the course of high speed police chase
iii) Court says that second degree felony murder rule is a court-made rule, defined as: "A homicide that is a direct causal result of
the commission of a felony inherently dangerous to human life
iv) In determining whether a felony is inherently dangerous, the court looks to the elements of the felony in the abstract, not the
particular facts of the case/defendant's particular conduct, to determine whether the felony by its nature cannot be
committed without creating a substantial risk that someone will be killed. Examples:
a) Shooting at an inhabited dwelling, poisoning with intent to injure, arson of a motor vehicle, grossly negligent discharge
of a firearm, manufacturing methamphetamine, kidnapping, and reckless or malicious possession of a destructive device
(common law)
v) Court ruled that because Howard's felony could have been committed in a way not inherently dangerous to human life, he
cannot be guilty of felony murder
vi) Dissent (and some other states)
a) Says to look at defendant's specific actions - did these actions carry a substantial risk of death?
v. Res gestae doctrine: nearly all courts agree that the felony murder doctrine still applies even after a felony is technically
committed - for example, during the escape
B. Felony Murder: Merger Limitation
i) General concept - homicide merges into the underlying felony, therefore preventing a charge for felony murder
i) Felony murder instruction is not proper when the predicate felony is an integral part of the homicide and when, under the
prosecution's evidence, it is included in fact within the offense charged
ii) Purpose - not to elevate all felonious assaults resulting in death to second degree murder even where the felon does not act
with malice
i. PEOPLE v. ROBERTSON (Supreme Court CA 2004)
i) Defendant fired shots in the direction of group trying to steal his hubcaps

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i) Defendant fired shots in the direction of group trying to steal his hubcaps
ii) Convicted of second degree murder in connection with the felony of discharging a firearm in a grossly negligent manner
a) Grossly negligent manner was specifically described as potentially resulting in injury or death to a person - inherently
dangerous
b) Abstractly, discharging a firearm in a grossly negligent manner is not inherently dangerous to life
iii) Court says there is no merger in this case because there is a collateral and independent felonious purpose - to threaten the
men away
iv) Gave the example of PEOPLE v. MATTISON - one prisoner gave another methyl alcohol - was not trying to kill anyone, just
make some money
v) Dissent:
a) Not fair to hold someone who wasn't trying to kill to a higher standard than someone who was - if he admitted to trying
to kill them because he was provoked this would have been a lesser offense
ii. STATE v. SOPHOPHONE (Supreme Court Kansas 2001)
i) In the process of escaping a robbery, Sophophone's co-conspirator Sysoumphone was killed by a police officer - Sop is charged
with felony murder in Sys's death
ii) Aggravated burglary is described as inherently dangerous in the statute
iii) No merger rule - felonious purpose was to steal the goods, not to kill his friend
iv) Sop was the proximate cause of Sys's death - police officer's shooting was not an abnormal response
v) Kansas is an agency state - said that felony murder rule does not apply when person who directly causes the death is a nonfelon
a) Minority of states have adopted the proximate cause theory for felony murder

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