CRIMINAL LAW OUTLINE

PROFESSOR PALACIOS – FALL 2006

Introduction: Setting the Stage
A. Four Elements of Criminal Culpability
1. A Voluntary Act (or omission when there is a duty to act) by the defendant
2. The social harm specified in the definition of the offense
3. the defendant’s mens rea (strict liability crimes aside)
4. An actual and proximate causal connection between elements 1) and 2)

B. Nature, Sources, and Limits of the Criminal Law

1. Criminal law is a process - rules guide it
2. Public condemnation distinguishes criminal law from civil law
3. Sources of criminal law:
a. Early common law
b. Statutory law and judicial interpretation (common law)

C. Constitutional Limitations on the Criminal Process

1. Constitutional Limitation: Trial by Jury
a. Sixth Amendment
 Jury trial required for criminal charges w/ punishment greater than 6 months (Sullivan v.
Louisiana 1993)
 12 members in federal and most state juries but as few as 6 may be okay (Williams v.
Florida 1970)
b. Voir Dire - process of questioning the jury prior to selection to learn facts and excuse jurors
for:
 Challenge for cause
 Preemptory challenges - limited number for each party except Baston challenge

D. Constitutional Limitation: Proof Beyond a Reasonable Doubt

1. Due Process Clause
2. State must persuade the fact finder "beyond a reasonable doubt of every fact necessary to
constitute the crime charge." (Winship 1970)
a. **must be every element of the charge - is way that she walked through the statutes**
3. Implements presumption of innocence
a. Reduce chances of wrongful conviction
b. The standard is appropriate in light of the impact of criminal accusation
c. It adds moral force to the criminal law
d. Better the guilty go free than an innocent suffer

4. Owens v. State - Enforcing the Presumption of Innocence

a. Facts: Owens was found by a state trooper passed out drunk in his truck with the lights on
and the motor running. He was found guilty of driving while intoxicated. He appealed on the
basis that the evidence provided at trial was not sufficient to convict him.
b. Either the defendant just arrived or was about to leave so must look at additional facts to see
if one of the options is so improbable as to make the other the only reasonable explanation
 D drinking for a while in the car
 D was unconscious in the car - why go to the car?
 Neighbors found the car to be suspicious

5. Owens: What happens if the state fails to meet its burden?

a. Factfinder never gets case unless there's "enough" evidence - Failure to meet state's burden
results in dismissed charges, acquittal or reversed conviction
b. If case goes to jury, judge gives instructions on the law (jury charge)

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 c. Likely charge in Owens had it gone to a jury: "You may infer the existence of one fact from
the existence of other facts."
d. Standard of Proof
 At trial: proof BRD
 On appeal: may be different depending on basis, e.g., whether a reasonable mind might
fairly conclude BRD that the D is guilty
 In Owens the standard on appeal was this: conviction upon circumstantial evidence alone
is not to be sustained unless the circumstances are inconsistent with any reasonable
hypothesis of innocence

E. Jury Nullification (Constitutional Limitation: Trial by Jury)

1. History: Put into place due to slavery time and trying to get to right result BUT is very
susceptible to discrimination
2. Even when state proves BRD that D committed the offense, a jury can acquit him for any reason
3. A jury's verdict is not reviewable, i.e., cannot be appealed except for extremely rare reasons
4. Once acquitted, D may not be tried again for the same offense (double jeopardy)
5. D not entitled to a jury instruction on nullification (State v. Ragland) b/c nullification is not an
"essential attribute" of right to jury
6. State v. Ragland
a. Facts: Ragland was convicted of several offenses. He appealed on the basis that the use of
the phrase “must find him guilty” in the jury instructions inappropriately precluded the jury
from its power of nullification, and that the jury’s power of nullification was an essential
aspect of his constitutional right to a jury trial.
b. Not required to notify jury of nullification power but comes down to policy of whether right or
wrong - determined that it would be bad policy since decisions would be unpredictable and
arbitrary

F. Constitutional Limitation: Due Process Clause

1. The Due Process Clause
a. Federal: Fourth Amendment
b. States: applied to the states through the 14th amendment
2. Prohibits taking life, liberty or property without due process of law

G. Constitutional Limitation: Cruel and Unusual Punishment Prohibition

1. The 8th Amendment forbids cruel and unusual punishment for federal crimes
2. It prohibits cruel and unusual punishment for state crimes as well b/c it is incorporated by the
14th Amendment
3. Also, state constitutions may forbid cruel and unusual punishment for state crimes

H. Constitutional Limitation: Presumption of Innocence

1. Defendants are presumed to be innocent
2. The state must prove BRD every element of the offense; D need NOT prove innocence
3. Only after the state meets the burden of making out a prima facie case, must the D put on a
defense
4. A factfinder my find an element exists BRD based on
a. Direct evidence
b. Or circumstantial evidence

I. Components of Burden of Proof

1. Burden of Pleading (who is responsible for raising the argument)
a. Also known as the burden of going forward
b. Allocation of burden

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  State: to plead all elements of the crime charged
 Defendant: to plead affirmative defenses

J. Burden of Production (how much evidence necessary)

1. Production is the quantum of evidence that a party must present to get the issue before the jury
2. Allocation of burden
a. State must produce evidence on each element of the offense definition
b. D may be given the burden of production on defenses unrelated to elements
3. Failure to satisfy burden of production
a. If the state fails to produce sufficient evidence on an element, the judge will enter verdict of
acquittal (defense argument in Owens)
b. If the defense fails to produce sufficient evidence on a defense issue, the jury will not be
instructed to consider that defense
c. If the state fails to produce sufficient evidence to disprove a defense, the jury will be
instructed on that defense (uncommon)
4. The case goes to the jury b/c burdens of production have been met and there are issues of fact
to be decided
5. If the jury is unpersuaded on a given element, jury must acquit. The state has not met its burden
on each element, BRD (Winship)
6. If the D has the burden of persuasion (affirmative defenses), it is generally by preponderance of
the evidence (rarely, clear and convincing)

K. MPC Burden of Persuasion (what is necessary to convince jury)

1. § 1.12 (1) provides "No person may be convicted of an offense unless each element of such
offense is proved BRD. In the absence of such proof, the innocence of the defendant is
assumed." (codification of Winship)

L. Circumstantial Evidence
1. Evidence not based on actual personal knowledge or observation of the facts (that would be
direct evidence)
2. It is testimony about facts from which inferences can be drawn

M. Presumptions & Inferences

1. Both presumptions and inferences allow a jury to find Fact A exists based on proof of Fact B
2. Presumption are inferences permitted by rules of evidence
a. Most are rebuttable
b. Some are not

N. MPC Presumptions of Fact

1. § 1.12 (5) Statutory presumption regarding an element of the offense has these consequences
a. Evidence of presumed fact goes to jury
b. Jury may regard facts giving rise to the presumption as sufficient evidence of the presumed
fact
2. § 1.12 (5) Presumption other than MPC which is not inconsistent with MPC will be given the
consequences "otherwise accorded it by law."

O. Standards of Review
1. Applied by appellate court to determine evidence was sufficient
2. General standard
a. Whether, based on the evidence produced at trial, a reasonable juror could find the defendant
guilty BRD
3. Review the evidence in light of the presumption that the defendant is innocent

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 4. But, a guilty verdict based on circumstantial evidence will be upheld only if evidence supports no
reasonable hypothesis of innocence

P. Judge and Jury

1. Judge
a. Insure the jury operates within its province
b. Decide whether a reasonable mind might fairly conclude BRD that the defendant is guilty
c. Rule on admissibility of evidence
2. Jury
a. Determine whether witnesses are credible
b. Weigh the evidence
c. Drawing inferences

Chapter 2 - Theories of Punishment: Utilitarian and Retributive; and Proportionality

A. Theories of Punishment
1. Retribution
2. Utilitarian (all seek to reduce future crime by one means or another)
a. Deterrence
b. Rehabilitation
c. Incapacitation (Specific Deterrence)

B. Utilitarian Theory of Punishment: Deterrence

1. Reduce future crime by intimidating would-be offenders by the threat of punishment
2. Deterrence requires punishment to:
a. Be swift
b. Be certain
3. Assumes:
a. Public knowledge
b. Cost-benefit analysis

C. Utilitarian Theory of Punishment: Incapacitation

1. Reduce future crime by making it difficult for the offender to commit more crime
a. Death is the ultimate incapacitator
b. Prediction of recidivism is essential
c. But prediction is, at best, an inexact science

D. Utilitarian Theory of Punishment: Rehabilitation

1. Seeks to reduce future crime by rehabilitating the offender
2. Causes of crime
3. Behavior modification (Clockwork Orange)
4. Examples:
a. Drug alcohol treatment
b. Anger management
c. Job skills training
5. Does it work? Studies are inconclusive.

E. Retribution
1. Restores moral balance
2. Society may punish only those who deserve
3. Looks backward

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 4. Retributive value is based on
a. Amount of harm done to victim
b. Culpability of actor
5. Not just revenge; reinforces fundamental values by responding to violations appropriately

F. Model Penal Code: Purposes of Punishment

1. § 1.02 Purposes; Principles of Construction
a. (1) Purposes of definitions
 Stop harmful conduct (deterrence, incapacitation, rehabilitation)
 Control the criminally disposed (same)
 Safeguard innocent conduct (due process does not allow us to punish innocent conduct)
 Give notice that conduct is illegal (due process)
 Differentiate crime by seriousness (proportionality)
b. (2) General purpose of sentencing (statutes should be construed to achieve those purposes)
c. (3) Construe
 According to fair import (abrogates the rule of lenity)
 To serve general and specific purpose of the code

G. Sentencing Cases

1. The Queen v. Dudley & Stephens

a. Shipwrecked survivors killed and ate one of their members to remain alive while adrift on a
lifeboat. Had they not done so, they would not have lived until the rescue ship arrived.
b. Human desire to survive vs. obeying the rule of law
c. Held not justified and they were sentenced to death. Sentence commuted by the crown.
d. Mitigation as opposed to justification (would say the conduct is not punishable at all) b/c
should punish but lesser punishment due to circumstances.

2. People v. Du
a. Held: The appellate judge held that trial court did not abuse its discretion in imposing
probation on defendant; even though defendant was presumptively ineligible for probation
b/c she used a firearm.
b. The statute required prison time if a firearm is used.
c. Most important part of case to court analysis leading to unusual result.
d. In Du, the only utilitarian purpose would be retribution and deterrence.

e. Sentencing Factors
 Whether defendant acted out of necessity (Dudley)
 Punishment others receive for like conduct (Du)
 Future dangerousness (Du) – no need for incapacitation
 History of criminal conduct (Du)
 Effectiveness of pas therapy/correction (Du)
 Provocation by the victim (Du)
 Defendant’s criminal sophistication (Du)

3. US v. Jackson
a. Facts: Jackson committed robbery on the day he was released from prison for two previous
robberies.
b. Statute primary purpose is incapacitation b/c no other way to stop him from robbing.
c. Sentencing Factors:

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  Time between last offense and current crime
 Quantum of harm done by defendant
 Age of defendant
 Typical age of one engaging in such conduct
 How others will be impacted by the sentence
 Whether defendant shows remorse or is in denial
d. Held: It was permissible to sentence Jackson to life sentence without parole for his 5th armed
bank robbery.

H. Proportionality
1. Theory: Crime deemed more serious by legislature will be punished more severely than one
deemed less serious.
2. Overlays all sentencing theories as a constitutional mandate (though some argue it applies to
retribution only)
a. Hot check writers have highest rate of recidivism rate and manslaughter lowest. Must
introduce proportionality to curb deterrence/incapacitation efforts.

3. Coker v. Georgia (1977)

a. Facts: The defendant escaped while serving time for various violent crimes and robbed the
victims, a husband and wife, in their home. Raped wife then kidnapped her. Was
apprehended, hostage alive.
b. Held: The sentence of death is grossly disproportionate and excessive punishment for the
crime of rape of an adult woman and is therefore forbidden by the Eight Amendment.
c. “Excessive”…
 Makes no measurable contribution to penal goals and is purposeless imposition of pain
 OR is grossly out of proportion to the crime

4. Ewing v. California (2003)

a. Upheld a three-strikes recidivist statute that resulted in a life sentence with parole eligibility
at 25 years for two or more prior serious or violent felonies.
b. Wobblers – crimes chargeable as either a felony or misdemeanor – were determined in the
discretion of the prosecutor or judge and nota as a matter of right for the defendant.
 Was presumptively a felony and moved to misdemeanor at discretion of judge or
prosecutor.
 20K per year to incarcerate someone – the Court said that up to the legislature to decide
how to spend their money

5. Miscellaneous
a. Previously three factors were relevant:
 Gravity v. severity;
 Penalty for different crime in same jurisdiction;
 And penalty for same crime in different jurisdiction
b. This three part test is not rigid. One factor may be outcome dispositive as it was in Ewing.
c. Is there a proportionality requirement in the 8th Amendment (cruel and unusual punishment =
disproportionate punishment)?
 If there is a proportionality requirement, it is very narrow (Kennedy/Souter/O’Connor)
 There is none (Scalia/Rehnquist)

CHAPTER 3 – MODERN ROLE OF CRIMINAL STATUTES: PRINCIPLE OF LEGALITY

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A. Principle of Legality and Related Terms
1. Principle of Legality: Requirement of previously defined conduct. GROSSLY UNFAIR to not put
people on notice. And you wouldn’t get compliance.
2. Statutory Clarity: Unconstitutional if a reasonable person could not determine what conduct is
prohibited. Statutes that violate this principle are void for vagueness.
a. Ex. “Don’t do anything bad.”
3. Rule of Lenity (Strict Construction): Narrow interpretation of a law so as not to enlarge it beyond
fair meaning of the words used and what they reasonably justify. Favors defendant. Construe
the defendant for the benefit of the defendant. MPC has changed it.

B. Statutory v. Common Law

1. Statutory Law
a. Model Penal Code (ALI recommendations)
b. State statutes not modeled after MPC
c. State statutes modeled after MPC (most states have at least some)
2. Common Law Crimes: Conduct made criminal by common law rather than statute.
a. Common Law: Rules which derive their authority solely from the “usages and custom of
immemorial antiquity” or from the judgments and decrees of courts affirming those principles

C. Model Penal Code: Leniency Eliminated

1. § 1.02. Purposes: Principles of Construction.
a. 1.02 (3): The Code shall be construed according to the fair import of its terms – but when the
language is susceptible to different constructions it shall be interpreted to further:
 the general purposes stated in this section;
 and, the special purposes of the particular provision.
b. 1.02 (1)(d): One of the general purposes of the code is to “give fair warning of the nature of
the sentences that may be imposed.” (FAIR WARNING)

D. Model Penal Code: Common Law Crimes Eliminated

1. § 1.05. All Offenses Defined by Statute; Application of General Provisions of the Code.
a. 1.05 (1): No conduct constitutes an offense unless it is a crime or violation under this Code or
another statute of the State.
 Some states have not adopted this (very few) so some still have common law basis.

2. Commonwealth v. Mochan
a. Where state statute carried forward common law crimes, phone calls suggesting sodomy in
persistent, lewd, immoral and filthy language was punishable conduct even though not
specifically prohibited by statute.
 Sodomy was illegal.
b. It was punishable at common law b/c it directly injured or tended to injure the public such
that state interference was required.
c. Dissent:
 Standard is too broad
 Legislative function is usurped by the court

3. Keeler v. Superior Court

a. Defendant caused trauma to abdomen of pregnant ex-wife. Fetus died. It had been viable
and death could have been caused by defendant’s assault.
b. The enacting legislature intended “human being” to mean one who had been born alive and
did not intend to criminalize causing the death of a feturs.
c. At the time the legislation was passed the common law definition of a human being did not
include a fetus.
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 d. The legislature is presumed to be familiar with common law terms.
e. Therefore, defendant was not criminally liable for causing the death of the fetus. But he
faced other criminal liability.
f. Texas Statute:
 “Individual” means a human being who [has been born and] is alive, including an unborn
child at every state of gestations from fertilization until birth. [bracketed material
eliminated]

E. Common Law Crimes

1. Either…
a. No common law crimes (MPC and almost all jurisdictions)
b. Or common law crimes remain if not replaced (Mochan)
2. But even where no common law crimes remain, common law terminology can still be important
(Keeler)

F. Constitutional Foundations
1. Ex post facto laws prohibited by Article I, Sections 9 and 10
a. New crimes: same conduct that was legal yesterday, is not legal today.
b. Harsher punishment
c. Elimination of defenses
2. Due Process clause of the 5th and 14th amendments (applicable to federal and state governments
respectively)

G. Statutory Clarity
1. Void for Vagueness
a. Question for the court - What does this law forbid?
b. Sufficiently definite that one doesn’t have to guess if conduct is proscribed; and judge can
apply and lawyer can defend
2. Overbreadth
a. Question for the court - Does the law forbid innocent conduct?
b. “Overcriminalizing” has a chilling effect
c. A particular problem with vagrancy statutes
3. Cases:
a. In Re Banks:
 Statute forbids “peep[ing] secretly into a room occupied by a female.”
 Held: The statute was sufficiently definite to give fair notice of conduct prohibited,
therefore, was not void for vagueness
 Held: It was not overbroad b/c it had been narrowly construed by judges.
b. US v. Foster (CA 9):
 Statute imposed additional punishment for using or carrying a firearm in drag trafficking.
 Held: One who had loaded gun in truck bed in a zipped bag under a snap-down tarp did
not “carry” a gun.
 USSCt later interpreted the statute to cover one who posses and conveys firearms in a
vehicle (Muscarello)

H. Rules of Statutory Construction

1. Legislative Intent – Intent at the time the statute was enacted.
2. Criminal statute must be construed with regard to the evil it was intended to suppress.
3. When the language is clear and unambiguous, there is not room for judicial construction.
4. Sources of legislative intent (see Banks)

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 a. “the purposes appearing from the statute taken as a whole, the phraseology, the words
ordinary or technical, the law as it prevailed before the statute, the mischief to be remedied,
the remedy, the end to be accomplished,…the preamble, the title, and other like means…the
legislative history of the act and the circumstances surrounding its adoption; earlier statutes
on the same subject; the common law as it was understood at the time of the enactment…
and previous interpretations of the same or similar statutes.”
5. Words not to be deemed merely redundant if they can reasonably be construed to add
something to the statute in harmony with its purpose.

I. Vagrancy Statutes
1. Chicago v. Morales (US 1999)
a. Satute prohibited loitering. State had to show:
 A person in a public place is a street gang member
 That person is loitering (remaining in one place with no apparent purpose)
 An officer orders all person to disburse
 The person has to disobey the order to disburse
b. Unconstitutional because:
 Statute failed to provide fair notice of the prohibited conduct; “apparent purpose”
 Statute was impermissibly vague for not providing minimal guidelines for enforcement.

J. Other Model Penal Code Provisions – She said this was an “afterthought” not something
we necessarily should have read.
1. § 1.04. Classes of Crimes; Violations.
a. Misdemeanor: a year or less incarceration
b. Felony: more than a year incarceration and death
2. §§ 6.03 and 6.06: Fines and terms of incarceration.

CHAPTER 4. ACTUS REUS: VOLUNTARY ACTS; OMMISSIONS; POSSESSION

A. Introduction
1. Criminal Acts are comprised of
a. Physical (actus reus)
b. Mental (mens rea)
2. Criminal Statutes proscribe
a. Certain conduct (i.e. breaking and entering)
b. Certain results (i.e. causing death)
3. Sometimes under certain circumstances, a.k.a. attendant circumstances (i.e., a child
under 14 years)
4. MPC Sec. 2.01(1) adheres to act requirement.
a. An act is “a bodily movement whether voluntary or involuntary” (Sec. 1.13(2))

B. Voluntary Acts
1. Definition: a movement of the human body that is willed or directed by the actor
2. An act is voluntary even if the result of
a. Habit (see MPC Sec. 2.01(2)(d))
b. Inadvertence
c. …so long as he could have done differently
3. Voluntary Conduct may be coerced
4. Three Kinds of Acts

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 a. Act
b. Omission
c. Possession
5. Essential for criminal responsibility, even if mens rea is not required
6. Strict liability cannot be challenged for lack of mens rea, but it can be challenged if
there is no voluntary actus reus.
7. Time frame may be critical, e.g., one is not acting voluntarily during an epileptic
seizure but he is acing voluntarily when he earlier neglected to take medication that
would prevent the seizure.
8. Verbal conduct may constitute the actus reus, e.g., conspiracy.
a. However, sometimes we get into First Amendment issues when we try to punish speech.

C. MPC Section 250.5 – Public Drunkenness, Drug incapacitation

1. A person is guilty of an offense if he:
a. Appears in any public place
b. Manifestly under the influence of alcohol, narcotics or other drug
 Not therapeutically administered,
 To the degree that he may
° Endanger
∗ Himself
∗ Or other persons
∗ Property
° or annoy persons in his vicinity.

D. Texas Statute: Sec. 49.02 Public Intoxication

1. a person commits an offense if the person:
a. appears in a public place
b. while intoxicated
c. to the degree that the person may
 endanger the person
 or another
d. It is a defense to prosecution under this section that the alcohol or other substance was
administered for therapeutic purposed and as a part of the person’s professional medical
treatment by a licensed physician.

E. Martin v. State: When a drunk person is involuntarily and forcibly taken by officers to a public
place, he has not violated a statute prohibiting a drunk person from “appearing” in any public place
because the statute presupposes a voluntary appearance.

F. Involuntary Acts
1. Involuntary acts not punished because:
a. They cannot be deterred, say utilitarians
b. The actor is not culpable, say retributivists.
2. Examples of Involuntary Movement.
a. Sleepwalking
b. Seizure
c. Unconsciousness
d. Being pushed by another
3. E.g., D did not “appear” intoxicated in public b/c officers took him there against his
will.

G. Conditioned Response
1. An actor whose conduct is the result of a conditioned response is not criminally liable.

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 2. Whether the conduct was the result of a conditioned response is a question of fact for
the jury.
3. If the judge finds there is insufficient evidence for a reasonable person to find that
the conduct was a conditioned response, the issue will not be submitted to the jury
(State v. Utter)

H. Model Penal Code & Voluntariness

1. Sec. 113.(2) defines “act” as a bodily movement voluntary or involuntary.
2. Sec. 113(3) defines “voluntary” by referring the reader to section 2.01(2)
3. Sec. 2.01(2): The following are not voluntary acts within the meaning of the section.
a. A reflex or convulsion
b. Bodily movement during unconsciousness or sleep.
c. Conduct during hypnosis or resulting from hypnotic suggestion.
d. A bodily movement that otherwise is not a product of the effort or determination of the actor,
either conscious or habitual.

I. Omission and Legal Duty

1. Ordinarily, the law places no obligation on an actor to rescue another.
2. A paramour owes not duty to his partner; therefore, his failure to summon aid to his
stuporous partner who later died of an overdose was not manslaughter (People v.
Beardsly).

J. Duty To Act: Circumstances in Which One Must Act

1. Statutorily imposed duty
2. Status relationship
a. Husband, Wife
b. Guard, Prisoner
c. Nurse, Patient
d. Parent, Child
3. Contractually imposed duty
4. Voluntary assumption of care where doing so precludes others from helping.
5. Creation of Risk.

K. Model Penal Code and Omission

1. Sec. 2.01(3) No liability for failure to act unless
a. It is part of the definition of the offense.
b. Or the duty to act “is otherwise imposed by law”
2. Examples
a. Theft by deception is committed by “failing to correct a false impression which the
deceiver previously created…”
b. Parent’s duty to protect his child.

L. Distinguishing Omission from Commission.

1. Doctors’ omission to continue treatment, though intentional and with knowledge that
the patient would die, was not unlawful failure to perform legal duty. (Barber v.
Superior Court)

M. More on Statutes
1. Conduct crimes: punish specific dangerous behavior
2. Result crimes: punish unwanted outcome, e.g. the death of a person
3. Attendant Circumstances: Both proscribed results and conduct may have attendant
circumstances, a condition that must be present with the conduct or result, e.g. driving while
drunk.
4. Remember, all three concepts relate to actus reus.

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CHAPTER 5: MENS REA: PART I: CULPABILITY REQUIREMENT AND STRICT LIABILITY

A. Culpability Requirement: Actus Reus PLUS Mens Rea

1. If the state presents evidence that a defendant has engaged in conduct (actus reus) and that
conduct satisfies the particular requirements of the definition of the crime with the necessary
mental state (mens rea), then the state has made out a prima facie case.
2. Once the state presents the evidence, the burden shifts to the defendant to present rebuttal and
defenses.

B. Culpability: Failure of Proof v. True Defense

1. Failure of Proof: If defendant successfully rebuts the proof on any element of the crime, the
state has failed to prove its case. The judge will grant defense motion to dismiss. Defendant is
free.
2. True Defense: If the state proves its prima facie case, the defendant will assert any defenses he
has such as duress. Same result: Defendant is Free

C. Definitions of Mens Rea

1. Broad: “morally culpable state of mind.” The guilty mind required generally for criminal
culpability. (Except, of course, for strict liability offenses)
2. Narrow: as an element, the specific state of mind expressly required in the definition of the
offense. An element of criminal responsibility.
3. MPC refers to “culpability”

D. Statute in Cunningham
1. “Whosoever shall unlawfully and:
a. Maliciously (mens rea)
b. Administer to or cause to be administered to or taken by any other person (actus reus –
conduct)
c. Any poison or other destructive or noxious thing, so as thereby to (actus reus – attendant
circumstance)
d. Endanger the life of such a person, or so as thereby to inflict upon such a person any
grievous bodily harm (actus reus – result)
2. Shall be guilty of a felony”

E. Common Law Terms: Malicious in Cunninham, Negligent

1. Malicious – does not require ill-will toward the person endangered; only, that one either 1)
intended to do the particular kind of harm done, or 2) was reckless about whther such harm
occurred (Regina v. Cunningham)
a. Intentional – acted with the purpose to cause the harm
b. Reckless – acted without regard to the risk to another. The harm must be foreseeable.
2. Negligent acted without exercising the standard of care a reasonable person would exercise
under similar circumstances.

F. Section 12-3(a) Battery

1. A person commits battery if he:
a. Intentionally or knowingly (mens rea)
b. Without legal justification (attendant circumstance? Or is it an affirmative defense?)
c. And by any means (Actus reus – attendant circumstance)
d. [either]
 (1) causes bodily harm to an individual or (actus reus – result)
 Makes physical contact of an insulting or provoking nature with the individual
(actus reus – result)

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G. Section 12-4(a) Aggravated Battery
1. a person who,
a. in committing a battery (actus reus – attendant circumstance)
b. intentionally or knowingly (mens rea)
c. causes great bodily harm, or permanent disability or disfigurement (actus reus – result)
2. commits aggravated battery.

H. Intent and Knowledge in Conley

1. Section 4-4 Intent. A person intends, or acts intentionally or with intent, to accomplish a result
or engage in conduct described by the statute defining the offense, when his conscious
objective or purpose is to accomplish that result or engage in that conduct.
2. Section 4-5 Knowledge: A person knows, or acts knowingly or with knowledge of (b) the result of
his conduct, described by the statute defining the offense, when he is consciously aware
that such result is practically certain to be caused by his conduct.

I. CL Definitions of Intent and Knowledge

1. Intent: A person intends to accomplish a result or engage in criminal conduct, when his
conscious objective is to accomplish that result or engage in that conduct.
2. Knowledge: A person knows the result of his conduct when he is consciously aware that such
result is practically certain to be caused by his conduct.

J. Evidence of Intent
1. Evidence of Intent: That one acted intentionally can be inferred from surrounding circumstances,
weapon used, force of blow.
2. One intends the natural and probable consequences of his acts:
a. “Presumption” is too strong of a word: Jury must draw inferences. Presumption of the above
statement causes due process clauses and goes against the “presumption of innocence” idea.
b. Stat must prove mens rea beyond a reasonable doubt.
c. Foreseeable has a role in making this inference.

K. CL Mens Rea for Result Offenses

1. When an offense is defined by result, the state must proves beyond a reasonable doubt that
defendant either:
a. Had the conscious objective to achieve the harm desired
b. OR was consciously aware that the harm defined was practically certain to be caused by his
conduct (Vicky says she is using “practically certain” and “virtually certain” interchangeably,
but there does seem to be some distinction between the two in the text.)

L. CL Transferred Intent
1. A aimed at B, but missed and killed C
2. A’s intent to kill B is “transferred” to the homicide charge A faces in causing C’s death.
3. Dressler asks “why bother?” A intended to kill a human being (no statutory or CL requirement
that intent be aimed at a specific human being). A and B are both human beings so there is
no need for the notion of “transferring” the intent.

M. General and Specific Intent

1. General intent: intending to commit the physical act
2. Specific intent: intending to violate the law or cause the harmful result
3. This idea is confusing to students and professors and the phrase is used in multiple ways by
courts (see your study guide for Sept 13, for notes on differing meanings)

N. CL Classification of Crimes: General Intent and Strict Liability

1. Crimes considered based on General Intent, usually

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 a. Assult/Battery
b. Rape
c. Kidnapping
d. False imprisonment
2. Crimes considered based on strict liability.
a. Statutory rape [non-public welfare]
b. Selling liquor to minors [public welfare offense]
c. Speeding and some other traffic offenses [public welfare offenses]

O. CL Classification of Crimes: Specific Intent

1. Arson (intent to destroy property)
2. Larceny (intent to deprive)
3. Robbery (intent to commit theft [intent to deprive owner])
4. Burglary (entry with intent to commit crime)
5. Forgery (with purpose to defraud or injure)
6. Theft (with purpose to deprive owner)
7. Attempt (a course of conduct planned to culminate in the commission of a crime)
8. Solicitation (purpose of promotion commission of a crime)
9. Conspiracy (purpose of promoting commission of a crime.)

P. Some Examples of Mens Rea/Culpability Elements

1. Attendant Circumstances
a. “Nighttime” in burglary
b. “property of another” in theft
c. “female not his wife” in rape
d. “dwelling” in arson.
2. Conduct
a. “breaking and entering” in burglary
b. “taking” in theft
c. “sexual intercourse” in rape
d. “burning” in arson

Q. MPC & Mens Rea

1. Sec. 2.02 - Approach is elemental: State must prove that the defendant committed each
element of the offense with the particular state of mind required by the statute.
2. Four States Of Mind: Replaces CL terms with four states of mind (levels of culpability)
a. Purposely aim to achieve result
b. Knowingly: practically certain conduct will lead to particular result
c. Recklessly: conscious disregard of a substantial and unjustifiable risk of harm
d. Negligently: unconscious disregard of a substantial and unjustifiable risk that an ordinary
person would not take.
3. § 2.02(3) Culpability unless otherwise provided: 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.
a. Negligently is not recognized in mens rea within the MPC (unless stated)
4. Adopts subjective liability (recklessness) as default position (as opposed to
negligence)
5. If not specified in definition of crime, mens rea is satisfied if the actor acted purposely,
knowingly, or recklessly (negligence must be expressly stated as a punishable mens rea)
6. Sec. 2.02(5) Substitutes for Negligence. Recklessness and Knowledge (what about
purpose?) When the law provides that negligence suffices to establish an element of an offense,
such element also is established if a person purposefully, knowingly or recklessly. When
recklessness suffices to establish an element, such element is also established if a person acts

14
 knowingly or purposely. When acting knowingly suffices to establish an element, such element
is also established if a person acts purposely.

R. MPC Purposely & Knowingly, etc.

1. §2.02(2)(a) Purposely conscious objective => conduct or result; aware => attendant
circumstances.
a. Purposely is very much like CL “intentionally”
2. 2.02(2)(b) Knowingly – aware=> conduct & circumstances; practically certain =>result
a. Very much like CL “willfully”
3. 2.02(2)(c) Recklessly – consciously disregards a subst’l and unjustf’d risk: gross deviation from
the standard of conduct of law abiding person in the actors situation
4. 2.02(2)(d) Negligently – should be aware of a subst’l and unjustf’d risk: gross deviation from the
standard of care of a reasonable person in actor’s situation
5. Recklessley vs. Negligently: R = knows and recognizes the risk and acts anyway. N = person
ought to know the risks.
6. No specific definitions for conduct, attendant circumstances and result.

S. MPC Willful Blindness Doctrine

1. 2.02(7) – The requirement of knowledge is satisfied by knowledge of a high probability (and a
conscious choice to avoid discovering the truth?)
2. Compare State v. Nation: Legislature failed to adopt the MPC’s proposed expanded definition of
“knowingly.” This means that willful blindness to a fact is NOT “Knowing” only actual knowledge
of the fact (in that state).
3. Doctrine is not only enumerated in the MPC it is also reflected in the Common Law.

T. Presumption Against Strict Liability

1. This means that statutes are presumed to have a mens rea requirement, state must overcome
the presumption.
2. A presumption is a rule of law that if the finder of fact finds a particular fact that gives rise to a
presumed fact.
a. Husband who’s wife gives birth to a child while they are married, the husband is presumed to
be the father.
3. Strict Liability is a classification of offenses in which there is no mens rea requirement. (Proof of
Only the act will prove guilt of the offense.)
4. Factors that can be used to rebut the presumption against strict liability. (Factors
used to prove that a particular offense is a strict liability offense)
a. Statutory crime is not derived from common law (there are no strict liability CL offenses)
b. Evident legislative policy would be undermined by a mens rea requirement (subordinate the
interest of a single actor in exchange for the interests of the public)
c. The standard is “reasonable adherence thereto properly expected of a person.” (Don’t drive
without a license)
d. The penalty is small (generally fines, small ones – not a loss of liberty)
e. The “conviction does not gravely besmirch one’s reputation”

U. CL Strict Liability: Public Welfare

1. Public Welfare Doctrine: allows additional regulation of an administrative nature unrelated to
personal guilt. E.g. liquor laws, pure foods laws, anti-narcotics laws, and motor vehicle and
traffic.
2. Non-public welfare strict liability offense: Strict liability also for statutory rape – rape of someone
below majority cannot be defended on ground that actor did not know of or was mistaken as to
victim’s age. (Statutory rape may be the only non-public welfare strict liability offense – she
can’t think of another one).
a. also note that statutory rape is highly punishable and does besmirch a persons character.

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 b. We do not, under the law recognize, that a 14 yr old has the capacity to consent to sex and in
order to protect this belief, we make this law a strict liability offense.
3. Staples v. U.S> 511 US 600 (1994). J. Thomas:
a. Facts: D had possession of AR-15 which because it is similar, can be modified with M-16 parts
to switch from a semi-automatic to an automatic function. Someone had filed off the metal
stop that prevented an M-16 switch from going into the fully automatic mode.
b. Held: If Congress had intended to eliminate the mens rea requirement of Section 586(1) it
would have done so directly.
c. Reasoning: Court wasn’t eager to remove the mens rea requirement in an area where so
many Americans own guns.
 Policy decision
4. Garnett v. State
a. Facts: D is 20 with IQ of 52, he became friends with a 13 yr old who had told him she was 16
and they had intercourse. She became pregnant and bore his child. The trial court excluded
evidence that D had been told the girl was 16 as immaterial, as statutory rape is a strict
liability offense. The D was found guilty and given five years on a suspended sentence w/
restitution to be paid to the victim and her family (is that child support?)
b. Held: second-degree rape statute prohibiting sexual intercourse with underage persons
defined strict liability offense that does not require state to prove mens rea, and makes no
allowance for mistake-of-age defense.
5. MPC does not welcome the notion of offenses without Mens Rea. You will see most of the time
that courts interpret an offense under the MPC to have mens rea.

CHAPTER 5: MENS REA: PART 2

A. CL Mistake of Fact
1. Issue: how mistake/ignorance of a fact relating to an element of the offense affects criminal
responsibility for the social harm caused by the actor.
2. Basis for allowing mistake to exculpate for the harm done, even if it was not caused by alcohol,
insanity or some other unusual mental state.
3. Rationale: Without all the correct information, the actor is deprived of the opportunity to make
the correct choice. A person’s misperception of reality may have allowed him to participate in
some conduct that he would have not otherwise engaged in.
4. Mistake of fact is not a true defense.
a. The prosecutor has the burden of persuading the trier of fact BRD that the defendant had the
requisite state of mind or that his mistake did not negate the mens rea.
b. The defendant has the initial burden of producing evidence that he was mistaken (after state
makes its prima facie case).

B. CL Mistake of Fact: Specific Intent Offenses

1. Common Law rule relating to mistake of fact in specific intent crimes: Defendant is not guilty of
the offense if his mistake of fact negates the specific-intent portion of the crime.
2. For mistakes of fact in the prosecution of a specific intent offense, when the mistake relates to
general intent portion of the crime, courts will apply general intent rules.
3. Navarro:
a. Facts: D took lumber from construction site: There was conflicting evidence as to whether
the D believed the owner abandoned it or gave permission to take it.
b. Held: D should be acquitted if there was reasonable doubt he had a good-faith belief that the
property had been abandoned or that the owner gave D permission
c. Because this is a specific intent offense, mistakes, reasonable or unreasonable, made in
good-faith are defenses because the mens rea is subjective (THIS actor, not the RPP)
4. CL Mistake of Fact: Strict Liability
a. Under no circumstances does mistake of fact negate criminal responsibility.

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 b. Speeding: not an excuse that the speedometer is malfunctioning. Too bad.

C. CL Mistake of Fact: General Intent Offenses

1. General Rule: A person is not guilty of a general intent crime if his mistake of fact was
reasonable
a. he is guilty if the mistake was unreasonable.
2. Exceptions: Even though a mistake of fact in a general intent crime is reasonable, a D may still
be held responsible under the moral wrong doctrine or the legal wrong doctrine.
a. Moral Wrong Doctrine: There should be no exculpation for mistake where if the facts had
been as the actor believed then to be his conduct would still be immoral. (Regina v. Prince;
Problem: Whose morals?) No one adheres to this doctrine any longer.
b. Legal Wrong Doctrine: There should be no exculpation for mistake where if the facts had
been as the actor believed then to be his conduct would still be illegal. D is guilty of a
criminal offense: X, despite a reasonable mistake of fact, if he would be guilty of a different,
albeit lesser crime, Y, if the situation were as he supposed. (D in performing a criminal act in
the first place should be the one to bear the risk that all facts are not as he supposes and he
may be guilty of a higher crime).
3. Mistake can be taken into account on sentencing, but not on whether or not a crime has been
committed. Mitigation.
4. Analysis of CL Factual Mistake
a. Is the offense “general intent,” “specific intent,” or strict liability?

D. CL Mistake of Law
1. General Rule: ignorance of [or mistake concerning] the law excuses no one.
2. Exceptions:
a. Different law negating specific intent
b. Reasonable Reliance Doctrine
c. Fair Notice.
3. Exception to Mistake of Law Rule
a. Ignorance/mistake of law that negates mens rea.
 Strict liability: Reasonable or not, mistake of law is not a defense.
 Specific intent: mistake of law (reasonable or not) is a defense to specific intent offenses
if it negates the specific intent. MPC does the same thing with fewer words.
 General intent: Reasonable or not, mistake of Law is not a defense.
 Reasonable Reliance Doctrine: A person is excused for committing a criminal offense if at
the time of the offense, he reasonably relied on an official statement of the law, later
determined to be erroneous, obtained from a person authorized to interpret the law.
° Official
° Statement
° Not private counsel advice.
° Can’t be ones personal interpretation
 Fair Notice: (Lambert Principle): A person who is unaware of a duly enacted and
published law may successfully assert a violation of due process if the ordinance:
° 1) punished an omission
° 2) imposed a duty based on status rather than activity
° 3) was malum prohibitum.
° These things don’t come up very often, if at all.

E. MPC and Mistake of Fact.

1. Sec. 2.04(1)(a): A mistake of fact is a defense if it negates any required mens rea
a. MPC doesn’t distinguish btw specific intent or general intent.

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 2. E.g Sec 223.2(2): A person is guilty of theft if he unlawfully transfers immovable property of
another.
a. Of another – attendant circumstance
b. Mistake (that no one owned the property) would negate culpability required.
3. Sec. 2.04(1)(b): A mistake of fact is a defense when it established a state of mind that
constitutes a defense.
a. E.g Sec 230.1(1). A person commits bigamy if he contracts another marriage.
 (a) unless at the time of the subsequent marriage, the actor believes the prior spouse is
dead.
 Statutory defense. Statute explicitly creates defense based on this belief, so a mistake
leading to the belief his previous spouse is dead is a defense. If you thought previous
spouse was dead, how could you have intended to get married while you were still
married to another. Negates the mens rea.

F. MPC and Mistake of Law

1. Sec. 2.04(1) : Essentially the reasonable reliance doctrine. Mistake of fact or law is a
defense only when it negates the mens rea element of the offense, but Sec. 2.02(9) says mens
rea as to criminality is not an element of the offense, so mistake of law is irrelevant except:
a. Where the definition of the crime so provides (end of 2.02(9))
b. Where the law has not been reasonably made available (2.04(3)(a))
c. Where the actor relies on an official statement (2.04(3)(b))

CHAPTER 6: CAUSATION: Factual Cause and Legal Cause.

A. Causation
1. Applied only to crimes that require the state to prove that the D caused a specific result
a. If no result as an element of the crime, then there is no problem with causation.
b. Not an issue in most cases.
2. Causation is both
a. Cause in fact: (aka, factual cause or actual cause) Did the D initiate forces that led to a
particular prohibited result?
b. And proximate cause: (aka, legal cause). Is there a sufficient connection btw the conduct and
the harm to justify punishment?

B. Related Concepts
1. Year and a day rule: Actor is liable for homicide if victim’s death doesn’t occur within a year and
a day. This is an old common-law rule and has been abrogated in most state statutes.
2. Actor is responsible for the “natural and probable consequences of his conduct.” Foreseeability.

C. Common Law and Factual Cause.

1. AKA actual cause and cause-in-fact
2. Tests:
a. But for
b. Substantial factor
3. But for – the harm would not have occurred when [and as] it had not engaged in this conduct.
4. Substantial factor test: D’s conduct is a cause if it is a substantial factor in producing the result
a. Used when but-for test leads to absurd results: e.g. independent acts by two separate actors
when each alone would cause the prohibited result. Application of the but-for test absolves
both from criminal liability.
5. Omissions are also causes when the actor has a legal obligation to act
6. Concurrent causation – when two actors engage in conduct which causes a result, either of which
would have caused the result alone, both are liable.
7. Direct cause: when act is the only causal agent in bringing about the harm

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 8. Factual cause eliminates candidates for responsibility but doesn’t resolve the matter of ultimate
causal responsibility. A person cannot be a proximate cause unless she is the actual cause, but
if the person is the actual cause, she may or may not be the proximate cause
9. Oxendine Case: one parent beats kid at night – gives him lethal injury; next day, Dad beats him
and he dies four hours later. Dad is not convicted of manslaughter because there was no proof
that the beating accelerated the death…evidence of causation was insufficient…was convicted of
2nd degree assault.
a. Take away: proof must be absolute

D. MPC Causation – Section 2.03(1)

1. Conduct causes a result when…
a. It is antecedent but for which the result would not have occurred [factual cause] AND
b. The relationship between the conduct and result satisfies any add’l causal requirements [legal
cause]
 Cannot have a causation issue without a result
 ** Results crime: causation has to be proved (conduct crime: causation does not have to
be proved)

E. MPC Factual Causation.

1. Problem of concurrent causes not directly addressed by MPC
2. Each is not a but-for cause
3. Resolution: But-for one or the other occurring, the death would not have resulted or would not
have resulted as it did.
4. “antecedent” is interpreted to mean any one of or a combination of multiple causes leading to a
single result.

F. CL Proximate Cause (foreseeable that injury could occur…i.e. leaving someone injured on
the side of road)
1. AKA, Legal Cause
2. Proximate cause: Even when D’s conduct factually caused a prohibited result, courts decline to
impose liability where doing so would result in unfairness or injustice.
3. Therefore,
a. A person cannot be the proximate cause unless she is the actual cause.
b. And one may be an actual cause without being the proximate cause.
4. A limitation on criminal liability
5. A court or jury does not discover proximate cause; it selects proximate cause. Make a
judgment based on the fact of whether this is a time where we can hold the person criminally
responsible.
a. Judge is fact-finder in bench trial. Question of fact for the jury in a jury trial.
6. Compared to actual or factual cause: Proximate is not simple a case of cause and effect; rather
it is a matter of policy and judgment.

G. CL Intervening Cause
1. Intervening Cause: a cause that occurred after the D acted but before the harm resulted.
2. Examples:
a. Act of God
b. Act of independent 3rd party that
 Accelerates harm
 Aggravates harm
 or causes harm in an unexpected manner.
c. Act or omission of victim
3. An intervening cause will not cut off liability if
a. It was intended or reasonably foreseeable.

19
 b. And not too remote or accidental as to fairly hold the D responsible.
c. Note that the illustrations and exercises from class are all variations of one of these two
principles.
4. De Minimus Contribution: Defendant will be relieved of liability for harm if his causal
responsibility is insubstantial in comparison to that of the intervening cause.
5. Foreseeability: Dependent Intervening Cause: occurs as a reaction or response to the
D’s conduct. Because it is a response, it is pretty much foreseeable, unless it is so unusual that
it borders on the bizarre.
a. Negligent Medical Treatment: Ordinary negligence then chain of causation not broken
(we assume that it is foreseeable that a doctor may act negligently.) Gross negligence
would break the chain of causation.
6. Foreseeability: Independent Intervening Cause: unexpected and does not occur in
response to the D’s conduct. (coincidental). Relieves the original wrongdoer of criminal
responsible unless it is foreseeable. (leaving someone in the road, and a car drives by and
strikes V and kills V = completely foreseeable that a car might drive by)
7. Intended Consequences Doctrine: intended to kill, but death did not occur in the way
intended, but nonetheless happened. D not relieved of liability.
8. Apparent Safety Doctrine: When a “defendant’s active force comes to rest in a position of
apparent safety (the risk has ended), the court will not follow causation any longer.
9. Voluntary Human Intervention: D more likely to be relieved of criminal liability where
another’s intervention is “free, deliberate, and informed”
10. Omission: An omission by an intervening actor, even one who has an obligation to act, will not
cut off liability of the initial actor. The second actor may be liable as well, however.

H. CL Dependant Intervening Cause

1. Definition:
a. Intended
b. Reasonably foreseeable
c. Or sufficiently related to his conduct
2. Does not break the chain of causation
3. The fact that another force contributed to the social harm does not relieve the actor from
responsibility: results in liability.
4. An act that hastens an inevitable result is nevertheless the cause of that act.
a. e.g. B has only 24 hours to live. A unplugs life support resulting in B’s death. A is the legal
cause of B’s death.
5. A victim’s preexisting condition that makes him more susceptible to death does not break the
chain of causation (“eggshell skull rule”)
a. e.g. A intentionally shoots B in the leg. B is a hemophiliac (unknown to A) and bleeds to
death before medical aid arrives. Even though a normal person would not have died, A is the
cause of B’s death.
b. Take the victim as you find him.

I. CL Independent Intervening Cause

1. Breaks the chain of causation: relieving the D of liability.
2. Finder of Fact must conclude:
a. The harm was not intended by the D or was not reasonably foreseeable.
b. Or that it is simply unfair and unjust to hold him responsible for the harm that has occurred.

J. MPC Proximate Cause

1. Actor’s conduct is factual cause; next inquiry: was it the prox. cause?
2. Inquiry is only necessary where actual result is not within contemplation (intention)
by actor.
3. Compare actual result with contemplated result
a. Description of result as it actually occurred.

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 b. Analyze actor’s mental state as to the result
c. Compare them in light of culpability required.

CHAPTER 7: HOMICIDE

A. Types of Criminal Homicide

1. Murder
a. Intentional Murder (including premeditation and capital murder)
b. Murder with provocation (voluntary manslaughter)
c. Depraved Heart Murder; Intent to Inflict Grievous Bodily Injury Murder
d. Felony-Murder
2. Manslaughter
a. Involuntary Manslaughter
b. Negligent Homicide

B. Elements Common to All Criminal Homicide

1. Mens rea- [various, depending on the grade] (Degree of the offense will depend on the mental
state required by the statute)
a. Intentional
b. Purposely
c. Knowingly
d. Recklessly
e. Negligently
2. Actus reus
a. Conduct – killing (i.e. Conduct causing death)
b. Attendant circumstance – human being
3. Result – death.

C. Intentional and unintentional killing

1. Intentional killings can be either.
a. Murder
b. Or manslaughter (through mitigation)
2. Unintentional killings can be either.
a. Murder (through aggravation)
b. Or manslaughter
c. Or a lesser degree of homicide.

D. MPC Intent
1. MPC: Model penal code retains the requirement of intent in Section 210.1(1)(a) defining murder
as “criminal homicide…committed purposely or knowingly.”
2. MPC says the actor must have
a. Had the conscious objective to cause death.
b. Or be practically certain his conduct will cause death.

E. Issue: What is a Human Being? When does one begin to be a human and when does one
cease?
1. Criminal Homicide is the unjustified, unexcused killing of a human being.
2. CL: a fetus is a human being only if born alive
3. Modern Trend: includes fetus
a. Usually defined by legislature.
b. Rarely defined by judicial interpretation (Keeler)
4. MPC Sec. 210.0: human being is one who has been born and is alive.
a. Texas Penal Code Sec. 1.07(26)

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  Defines human being as one who is alive including an unborn child at every state of
gestation from fertilization until birth.
 Effective Sept. 1, 2003
People v. Eulo:
- The court looked at the traditional determination of death and how you decide the moment of
death. The traditional determination of death has been based on vital signs – breathing and
heartbeat. Now that technological advances have allowed continued vital signs even in the
presence of total brain death.
- Court discussed legislative role vs. judicial role: the court decided it was okay for them to allow
brain death as the marker of death in the absence of legislative comment.

F. Issue: When is one dead?

1. A person cannot murder someone who is already dead.
2. When is one dead?
a. Traditionally, when breathing and heartbeat stop
b. Brain death standard that is used when physician determines:
 There’s no spontaneous respiratory or cardiac function and resuscitation attempts would
be futile.
 Or there is an absence of spontaneous brain function ([brain death]Eulo)

G. Issue: How much time can pass between conduct and the result?
1. Early CL: death is “caused” by D’s conduct if factual causation having been found, the V died
within a year and a day of the conduct. (Probably don’t need to know this at all.)
2. Modern Trend:
a. Abrogate the rule
b. Lengthen the period.
3. MPC abrogates the rule

H. Intentional Murder, aka Intent to Kill Murder

1. Early CL: “malice aforethought”
a. “Malice” is not ill will; it is intent
b. “Aforethought” is not premeditation.
 Premeditation is used later to indicate planning and is used by the court to aggravate up
to first degree murder.
 Here aforethought doesn’t mean much.
2. Intent (analogous to the MPC?)
a. When one desired the result (even if he thought it was unlikely)
b. When one knows the result is substantially likely to occur (even if he didn’t want it to happen)

I. Intent under the Model Penal Code

1. MPC Sec 210.2(1)(a) retains intent requirement: “Criminal homicide… committed purposely or
knowingly”
2. MPC Sec. 2.02(2)(a) says to be purposely must
a. Have had the “conscious objective” to engage in the conduct or cause the result
b. And be aware of attendant circumstances, or believe that or hope that they exist
3. MPC Sec. 2.02(2)(b) says to act knowingly must
a. Be aware of the nature of his conduct or attendant circumstance
b. And be aware it is practically certain that his conduct will cause the result.

J. Premeditated Murder
1. CL: premeditation aggravates homicide to 1st degree or capital murder
2. Deliberation-Premeditation is used to divide murder into degrees (MPC rejects this)
a. Premeditate: think about beforehand

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 b. Deliberate: measure and evaluate facets of choices
3. Various interpretations of premeditate:
a. Split second prior to crime (Schrader, later overruled by Guthrie)
b. Elaborately planned crime
c. Better (What Vicki thinks the standard should be): long enough to allow a
reasonable person time to subject his conduct to a ‘second look’

K. Proof of Premeditation
1. Generally not direct evidence
2. Circumstantial evidence permissible (Forest – guy kills his father in the hospital…brought gun…
premeditated)
a. No provocation by V
b. D’s conduct and statements, pre- and post-crime
c. Continued blows after deceased had been defeated
d. Brutality of killing
e. Nature and number of wounds (Forrest)
3. Traditionally, courts have been very reluctant to allow words alone to be adequately provocative.

L. Deadly Weapon Doctrine

1. When A intentionally uses a deadly weapon on B and kills him, A is “presumed” to intended to kill
B
2. Actually a permissive inference.

M. Premeditation and Culpability

1. Does premeditation separate the more culpable from the less culpable?
2. Arguable not
a. Killing child by abuse in the absence of premeditation is not 1st degree murder (Midgett)
b. But, killing someone to prevent their further suffering is 1st degree murder (Forrest)
 No MPC discussion involves premeditation (unless it addresses intent)
 Premeditation is just one factor considered to elevate crime to 1st degree

N. Premeditation under the MPC

1. MPC rejects premeditation
2. Sec.210.2(2): 1st degree of murder for all intentional killings
a. Purposeful
b. Knowing

O. Manslaughter
1. Under CL, provocation mitigates intentional killing to manslaughter
2. Rationale: passion obscures reason and renders the provoked intentional killer less
blameworthy than the unprovoked one.
3. Definitions
a. The unlawful killing of another human being without malice (despite intent)
b. Intentional killing of another in the heat of passion

P. Manslaughter Compared with Murder

1. Catchall for intentional homicide that aren’t first degree?
2. Intermediate form of homicide
3. Not culpable enough to be murderer. Too culpable to be justified and not punished at all.
4. May be graded
a. Voluntary (intentional murder w/provocation; or recklessness)
b. Involuntary (criminal negligence; or misdemeanor manslaughter)

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Q. Voluntary Manslaughter
1. Restrictions (Giouard)
a. Provocation must be reasonable
b. Killing must have been in the heat of passion.
c. Not sufficient time to cool off
d. Causal connection between provocation and fatal act.
2. Words alone are not adequate to provoke a reasonable person to kill in the heat of
passion w/ some exceptions.
a. If they are accompanied by conduct indicating present intent and ability to cause bodily harm
b. In some jurisdictions, if the words informed of an event that, had he witnessed it, would be
provocative. (informational words vs. insulting words)

R. Voluntary Manslaughter and Adequate Provocation

1. Traditional Circumstances allowed:
a. Extreme assault or battery on close relative
b. Mutual combat
c. Illegal arrest of close relative
d. Injury or serious abuse of a close relative of
e. Sudden discovery of spouse’s adultery
2. Not allowed as adequate provocation.
a. Sex between V and D‘s sister
b. Words of reproach, no matter how grievous
c. Woman’s refusal to go out with D
d. Driving Cattle off the road.
3. Adequate provocation is
a. Girouard (wife taunted husband and antagonized him) – that which is calculated to
inflame the passion of a reasonable person and cause him to act, for the moment,
from passion rather than reason.
b. Maher – passion that might render ordinary men, of fair average disposition, liable
to act rashly or without due deliberation or reflection and from passion rather than
judgments.
4. Crucial Factor: relationship between gravity of provocation and the D’s reaction.

S. Misdirected Retaliation Doctrine

1. Most jurisdictions specify that the provocation must have come from the victim.
2. Therefore, if D saw his child being seriously injured by a reckless driver.
a. He committed manslaughter if he retaliated by killing the driver
b. But, he committed murder if he killed someone who tried to protect the driver.
3. Suddenness: some statutes state the reaction must be suddenly after the provocation, but some
states are starting to recognize that provocation can build over time.

T. Voluntary Manslaughter & Reasonableness

1. Oxymoron: reasonable killer
2. Public Policy behind reasonableness requirement (considering specific background of person in
question):
a. Reduce incidence of fatal violence by not allowing a short-temper to excuse loss of control
3. The “reasonable person” is an objective standard
4. He or she is
a. Of average disposition
b. Sober
c. Of normal mental capacity
5. How far do we go with the kind of person? (Think about the benefits and problems for each idea)
a. Cultural?
b. Physical disability?

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 c. Size?
d. Sexual preference?
e. Psychological (not considered…would allow too many “hotheads” to avoid punishment)

U. Mistake as to Provocation
1. Not addressed in most statutes
2. Provocation is adequate if reasonably believes injury exists even though it does not
3. Should
4. e.g., D shot suspected adulterer reasonably but incorrectly believing that he committed adultery
with his wife. Provocation reduced crime to manslaughter.

V. MPC Provocation: §210.3(1)(b)

1. MPC differs from CL. MPC retains provocation in broader form
a. Extreme mental or emotional disturbance: Murder is mitigated if D is acting under influence
of extreme mental or emotional disturbance for which there is a reasonable explanation
b. Reasonableness of the explanation is determined from the viewpoint of a person in the
D’s position under the circumstances as he believed them to be.
c. This is a quite subjective standard, but not wholly subjective.
2. Provision permits but does not require the finder of fact to mitigate based on EMED
(Casassa - stalker)
3. More differences between the MPC and common law:
a. MPC uses the term “Extreme Emotional Disturbance”
b. Under the MPC, there are no circumstances which as a matter of law are not
justification. There is no list, leaves up to the jury (anything could potentially be justification).
c. The MPC drops the time requirement (no reference to suddenness); recognizes that time my
increase, rather than decrease, the emotional disturbance.
d. The MPC doesn’t limit mitigation to situations where the actor kills the source of provocation
(No misdirected retaliation doctrine)
4. The MPC is much more generous than the CL doctrine with regard to provocation

W. Provocation: Role of Judge and Jury – Who Decides

1. Whether provocation is adequate
a. Formerly judges
b. Current trend, juries
 Problems with this are jury bias. Traditionally skewed to protect men.
 Heterosexual women and gay men have a hard time convincing juries that
2. Whether sufficient time passed for to have cooled off
a. Formerly judges
b. Current trend, juries.

X. MPC: Manslaughter – Recklessness (Involuntary Manslaughter)

1. §210.3(1)(a) “Criminal homicide constitutes manslaughter when it is committed recklessly.”
2. “Committed recklessly” means a killing for which the actor
a. Is reckless as to causing death and
b. Is reckless as to the victim being human
c. D must disregard substantial risk that a person’s death might result from her conduct (killer
dog case)

Y. Depraved Heart Murder:

1. Depraved Heart and Intent to Inflict Grievous Bodily Injury are often subsumed into the same
offense.
2. Main task: Drawing a line between murder and manslaughter
3. An unintentional killing is murder where:

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 a. D shows extreme indifference to human life
b. And an awareness of either (this is one formulation, and you’ll have as many formulations as
there are jurisdictions, until you get to the MPC jurisdictions and then they are rather uniform)
 Risks of conduct
 Or that the conduct is contrary to law
4. Relies on implied malice (have to imply that intent by the extreme recklessness of the actor’s
behavior)
5. Thomas Rule: does an act resulting in high degree of human death and wanton disregard for
human life
6. Knoller
a. Implied Malice: “circumstances attending the killing show an abandoned and malignant
heart”
b. Abandoned and Malignant Heart requires the state to prove defendant’s awareness of the risk
of death
 (not just the risk of great bodily injury)
7. Yet more colorful phrases under common law
a. Depraved indifference
b. Utter callousness toward the value of human life and complete and total indifference as to
whether one’s conduct will create the requisite risk of death of another
c. A “don’t give a damn” attitude
8. It’s a jury question…unless the judge decides there isn’t sufficient evidence to give it to the jury
in the first place.

Z. Intent to Inflict Grievous Bodily Injury

1. Very often subsumed in a statute with Depraved Heart Murder…treated as the same offense.
2. Intent to inflict serious bodily injury can be adequate mens rea for murder
3. Policy: To hold D liable for deaths that occur under circumstances that involved great risk
(intending serious bodily injury).
4. Doesn’t allow the D to mitigate by saying “I only meant to hurt him”
5. May be included in depraved heart murder

AA. MPC §210.3

1. Criminal homicide also constitutes murder when committed recklessly under circumstances
manifesting extreme indifference to the value of human life (CL Depraved Heart)
2. Such recklessness and indifference is presumed if death occurs during certain crimes (CL felony
murder)

BB. Negligent Manslaughter

1. State v. Hernandez:
a. Homicide committed by drunk driver w/stickers showing cavalier attitude about drinking and
drunkenness
b. Criminal negligence is failure to be aware of the substantial, unjustifiable risk…constitution
gross deviation from reasonable standard of care.
c. Slogans inadmissible b/c
 Irrelevant to failure to be aware of risk
 Prejudicial
d. Yes, the MPC says that a greater level of mens rea will substitute for a lower level,
but remember that courts are always concerned with Prejudice. Therefore if the
evidence to prove the higher mens rea is prejudicial, then it won’t be allowed.
 Greater knowledge is preferred over lesser knowledge unless said knowledge
leads to prejudice
e. Difference btw negligence (an unaware of the risk), compared to Reckless ( a
disregard of a known risk).

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 2. State v. Williams: parents failed to get medical treatment for infant with toothache – led to
gangrene and he died
a. Failure to act while under a duty to do so is proximate cause of death, ordinary negligence
can be used to convict person of involuntary manslaughter

CC. Felony Murder Doctrine – Broad Formulation

1. Under the broadest formulation of the felony-murder rule, any death occurring during the course
of any felony is murder. Death of the victim, a police officer, bystander, cohort and for any
reason (even a heart attack if caused by fear of the felonious act)
a. Predicate felony + death = felony murder
b. Strict liability as long as death is a consequence of the felony. It does not matter if there are
mitigating circumstances, intent doesn’t matter.
2. Felony murder rule substitutes mens rea for the murder with the mens rea for the felony, no
intent or mens rea element at all for the homicide.
3. V’s pre-existing condition does not cut off liability
a. So robber is criminally liable for death of teller with preexisting heart condition whose fatal
heart attach is brought about by the robbery.
4. It is murder even though the death may have been accidental or unintended, not planned as part
of the robbery, or unforeseeable.
a. State does NOT have to prove intent

5. Criticisms of the Felony Murder Doctrine

a. Excessive punishment for the culpability. See Fuller where burglary of auto tires and high
speed chase in which another motorist was killed were sufficient to support felony-murder
b. Doesn’t deter b/c unintended acts cannot be deterred
c. Not retributive b/c not based on appropriate culpability.
d. The dissonance that is caused by punishing someone who did not intend to kill possibly with
death is the foundation for the criticisms.
6. In Favor of
a. Will deter negligent and accidental killings by inducing felons to take care
b. Well deter predicate felony. Strict liability may deter the crime in the first place.
c. Relieves the state’s burden of showing intent
d. Demonstrated evil propensities – that it makes sense from a societal safety standpoint..
7. Co-Felons – Affirmative Defense
a. Co-felon liability: All parties liable for deviations from common plan which are foreseeable
consequences of the plan.
b. Affirmative defense: In a substantial minority of states, it is a defense if D wasn’t the only
participant, that (available in a substantial minority of jurisdictions and is very difficult to
make out)
 D did non intend to kill
 And D wasn’t armed
 And D had no reason to believe the co-felon was armed
 And D had no reason to believe anyone intended conduct likely to cause death or injury
(this is where it becomes VERY difficult to prove)
DD. Felony Murder - Limitations
1. Inherently dangerous felonies (usually enumerated in the statute)
2. Independent felony and merger (usually enumerated felonies are independent)
3. In furtherance of…
4. Proximate cause
5. Inherently Dangerous
a. Felony cannot be committed without substantial risk someone will be killed
b. Underlying conviction must be inherently dangerous felony (shooting at dwelling, poisoning
with intent to injure, arson of a motor vehicle, kidnapping)

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 c. Statute usually enumerates felonies but when it doesn’t, courts resort to common law
restriction of inherently dangerous
d. What is Inherently dangerous
 Broad (expands reach of FMR): Foreseeable danger to life under the facts of the particular
case. If a death has occurred, it’s a lot easier to argue that the behavior was inherently
dangerous
 Narrow: the felony must be one that is, in the abstract, inherently dangerous to human
life (Burroughs). If it is possible to commit the felony without risk to human life, it is not
inherently dangerous.
 If the statute does not enumerate, the courts will use one of these two methods to
determine what felonies are inherently dangerous.
e. According to the statutes and the common law, the following are inherently dangerous:
robbery, burglary, arson, rape, mayhem, kidnapping, escape, sodomy and other sexual
assaults. (this list is based on the Alabama statute and the sodomy thing is probably not
allowed anymore)
f. Not inherently dangerous: Theft by deception, Forgery, embezzlement (These are
the least dangerous felony offenses) FMR does not apply
 ** Defendants can still be convicted without the felony murder rule…but the rule
eliminates the need for intent

6. Independent Felony (felony must not be a personal injury crime…i.e. stealing mail,
etc…)
a. Predicate felony must not be one involving personal injury (assaultive conduct).
b. It must have a purpose other than causing bodily harm
 E.g. manslaughter cannot be the basis for FMR b/c the crime of manslaughter would not
exist since every death would be felony murder. It would remove the mens rea element of
almost all deaths.
c. Might be prosecutable under depraved murder or intent to inflict grievous bodily injury but
mens rea must be proven.
d. When the intent is to hurt in the original felony, that intent is said to be merged with the
felony…so that the court will have to PROVE that you intended to kill or cause severe bodily
harm
e. Where elements of a predicate felony are also in homicide, the FMR does not apply
f. Thus Felony child abuse resulting in death merged with the homicide. (Smith)
g. Non-independent: Assault, Assault w/ dangerous weapon, Burglary w/ intent to assault,
Involuntary manslaughter, voluntary manslaughter (these are the most dangerous felony
offenses) FMR does not apply
h. Examples
 Must be an independent felonious purpose (IFP)
° Robbery: IFP is to obtain money
° Arson: IFP is to destroy a structure by fire
° Burglary: IFP is the commission of theft or another felony (Minority: unless burglar
intends to commit an assault.

EE. “In furtherance”

1. “In the commission or attempted commission of” or “In the course of and furtherance of”
2. During isn’t enough
3. Factors to determine if in the furtherance of:
a. Time
b. Place
c. Causal Connection
4. Also called the res gestae requirement
5. Time:

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 a. Courts consider crimes as continuing even after they are complete
b. E.g. some jurisdictions include killing during immediate flight with no break in chain of events
6. Once the felon has reached a place of temporary safety, the impact of FMR ends.
7. Accidental death occurring during the commission is not enough for felony murder
8. The death must have been caused by an act done in furtherance of a felony. Thus
a. Pilot of plane carrying 5000lbs of MJ which crashed, killing a passenger, was not criminally
responsible for his death under FMR (have to ask yourself whether this was an inherently
dangerous crime)
b. Had he been flying low to avoid radar, the result might be different.
9. In preparation not enough because there is time to change her mind.
FF. Proximate Cause
1. D’s conduct must be proximate cause of death
2. Criminal liability (per agency) extends to deaths caused by co-D, and police or bystanders (if a
murder occurs in the commission of the crime, the crime is the proximate cause
a. Thus, when 4 men rob a store but a policeman kills two of them, the survivors cannot be
charged with death of their cohorts. State v. Somophone:
GG. Agency v. Proximate Cause
1. Agency: FMR does not apply if the person who directly caused the death is a non-felon (b/c they
are not an “agent” of the felon)
a. Agency theory imputes one person acts to another. Doesn’t make much sense when the
parties are antagonistic. (or when other’s act is lawful)
2. Proximate causation: A felon may be held responsible for murder for a killing committed by a
non-felon if the felon set in motion the acts which resulted in victim’s death.
a. Minority.

CHAPTER 7 – HOMICIDE & CAPITAL PUNISHMENT

A. Furman v. Georgia
1. DP unconstitutional as practiced b/c arbitrary and capricious, per curiam
2. Opinions striking d/p
a. Douglas, Marshall: discriminatory
b. Stewart: wanton and freakish
c. White: needless extinction of life
d. Brennen: cruel and unusual punishment
e. Marshall hypothesis: if the public knew certain things about the death penalty, they would
recoil in horror
i. No more effective than life imprisonment
ii. Cost of executing is higher
iii. Model prisoners; model citizens after release
iv. No attempt is made to fetter out the chance of recidivism
v. May encourage violence
vi. Applied prejudicially
vii. Innocent people are executed
3. Intermediate position
a. Retentionists start to see that executing innocent people is bad
b. Abolitionists start to see that the support for the DP is too strong to believe that it will go
away.
c. These people come together in an attempt to narrow the application in order to greatly
improve the chance that innocents will be executed.
4. Dissenters
a. Blackmun: legislative province

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 b. Rehnquist: federalism
c. Powell: popular support; have not’s – tragic, but not unconstitutional
i. Later gave up that a workable system for implementation can be instituted.
d. Burger: here’s how...essentially an instruction to the legislature on how to implement a fair
application.

B. Gregg v. Georgia (1976)

1. Is the Death Penalty unconstitutional per se
a. Says that with the proper guidance, the DP can be applied property.
2. Georgia offenses punishable by d/p: murder, kidnapping for ransom or where victim is harmed,
armed robbery, rape, treason, and aircraft hijacking.
3. Bifurcated trial: Guilt or innocence first, then sentencing.
4. Sentencing stage: Jury must find one of 10 aggravating circumstances before d/p aval.
5. DP not unconstitutional per se
6. 8th Amendment: prohibits cruel and unusual punishment
a. Evolving standards of decency – quote by CJ Warren in 1958
i. Objective indica of public attitude
 Legislative response to Furman enacting d/p statutes, 35 states re-enacted
 Juries: “the relative infrequency of d/p verdicts is not a per se rejection of the concept.
 Not public opinion or polls or international opinion
b. Plus, not excessive
i. Not unnecessary & wanton infliction of pain
 Death Penalty said to serve two purposes:
– Retribution: some crimes are such a grievous affront to society that death is the
only adequate response.
– Deterrence: complex issue with no dispositive stats either way.
ii. Proportionality: not grossly out of proportion to the severity of the crime.
7. Procedural & GA statute: Is it unconstitutional as applied
a. Bifurcated
b. Jury, guidance: Jury focused on circumstances and characteristics of D,
i. aggravating and mitigating circumstances
ii. 2 found
c. Clear and objective standards
d. Auto Appeal Direct review
i. Limit passion, prejudice and arbitrariness
ii. Cross case comparison: Look at other DP cases, and decide whether this case was
constant. (Later held that this comparison was not an essential part of a constitutional DP
scheme)

C. Other US SCt Cases

1. Woodson and Roberts: Mandatory DP is unconstitutional (no specific crimes REQUIRE
application of the DP)
a. Furman: juries must not have unfettered discretion to decide
b. Woodson: juries still must have some discretion
2. Lockett (and Woodson): individual consideration required, so can introduce non-statutory
mitigation
3. Ring – D has 6th amendment right to have jury decide whether to impose Death. Judge is not the
one with the discretion to decide whether to impose death.
a. Side note: support for the death penalty has dropped sharply since the option of Life without
parole has been made available.

D. Reliable Procedures

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 1. McCleskey: impermissible race discrimination not demonstrated (racial discrimination would
have to be proved to be present in THIS SPECIFIC CASE); no violation of Equal Protection or Cruel
and Unusual Punishment clause
2. Payne: Victim impact evidence allowed.
a. Evidence bearing on emotional effects on V’s family is allowed to show jury impact
of def’s crime

E. Death Eligibility
1. Tison: Non-triggerperson death eligible where he is a major participant in crime and acted with
reckless indifference to human life.
a. This whole case is about the mens rea required for imposing DP.
b. Three aggravating circumstances
i. Grave risk of danger to persons other than the victim.
ii. Pecuniary Gain
iii. Especially heinous
c. Mitigating factors
i. Young Defendants
ii. Felony murder convictions.
d. Enmund: No DP for Felony murder alone, unless there is
i. Intent to kill
ii. Likelihood of a killing occurring is substantial.
iii. Differentiation
 Minor participant
 No intent to kill.
 Appreciably greater culpability
2. Atkins: Execution of mentally retarded violates constitution. States to determine what is “MR”.
(2002)
a. For a long time the US was the only country that would allow an execution of MR
b. Cruel and unusual punishment to kill a person with the mental capacity of a child.
3. Roper v. Simmons (2005): 18 and under death ineligible
a. Minor at the time of the killing is death ineligible.
b. Problematic b/c drawing a line and there will be exceptions.

CHAPTER 8: RAPE – SEXUAL ASSAULT & GROSS IMPOSITION

F. Common Law Rape

1. defendant had sexual intercourse (early CL: narrowly defined, penetration by the penis of the
vulva)
2. with a woman not his wife (spousal immunity, gender specific)
3. One of the following means:
a. Using physical force or the threat of force*
b. Deception
c. Victim asleep or unconscious
d. Victim not competent to give consent
4. and without her consent*

G. Spousal immunity: …with a woman not his wife.

1. CL: a husband who forced his wife to have sex, could not be convicted of rape
2. Justifications: consent by marriage, W is property of H, single legal existence (this extended to
the sexual relationship – can’t rape oneself)
3. Today
a. Retained by most jurisdictions but trend limits or eliminates
b. Where retained, H may be prosecuted for assault

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 c. Where retained, separation or divorce destroys immunity
d. Domestic partners may be included.

H. Texas Rape Statute

1. Gender neutral
2. Part (a)(1) – Adults
a. Without consent
b. Vaginal/Anal intercourse, object rape, fellatio, and cunninlingus
3. Part (a)(2) – Children
a. Consent immaterial
b. Same conduct as adults
4. No consent
a. Force
b. Threat w/present ability to carry out
c. Unconscious; unable to resist
d. Mental disease/defect => unable to resist or understand nature of act
e. Actor knows victim is unaware
f. Impaired power
g. Threat to another
h. Public servant, mental health provider, clergy person: note, these areas are in the alternative
(no force required)

I. Resistance Requirement
1. Resistance was necessary to establish the force element of the offense (ambiguous threat)
2. A conviction for forcible rape may not stand unless V resisted and her resistance was overcome
by force or threats
a. The resistance requirement has been confused with consent, i.e. if V didn’t resist, it’s hard to
believe she did not consent.
3. Lack of consent alone was not sufficient.
4. How much was sufficient to show resistance?
a. Follw natural instincts of every proud female to resist until overpowered
b. Enough to make lack of consent evident to the male
c. Reasonable under the circumstances.
5. Resistance – Just say “No”
a. Is simply saying “no” enough
b. Some argue men can honestly be mistaken and believe “no” means “yes” b/c
i. Our culture prompts women to make token protest so she won’t seem easy
ii. Our culture believes that women find force erotic
iii. Get a grip (prof’s editorial comment)
c. But note: women most commonly use nonverbal methods to give consent to sexual
intercourse

J. Resistance Cases
1. Generalized fear of force not enough; need threat near time of sex act and for the purpose of
getting sex (Alston)
2. A necessary element of rape is either
a. Actual force sufficient to overcome V’s physical resistance
b. A reasonable threat of force making resistance unnecessary (Rusk)
3. Whether a threat of force was implied is a jury question (Rusk)
4. Verbal resistance alone is not sufficient to prove rape w/o showing forcible compulsion
(Berkowitz)
5. Force (with sufficient resistance) found based on that force necessary to achieve penetration
(MTS) extreme view.
a. How a jurisdiction decides to define force can make a tremendous difference in the result

32
 6. These cases tell us that under the traditional common law
a. Lack of consent and force are not the same
b. To prove force,
i. The F must physically (not merely verbally) resist the male, i.e.., “No” is not enough
ii. Or the male has to have used force or threatened her on the present occasion to an
extent that would cause a reasonable female to fear grievous injury if she resisted.

K. Resistance: Contemporary View

1. Modern Rule: Resistance is generally not required b/c
a. Increased risk to V
b. Criminal Liability should not depend on V’s willingness to resist
2. Abolished in a few jurisdiction by statute or judicial interpretation
3. Other jurisdictions require less resistance (reasonable under the circumstances.); nothing more
than evidence of no consent)
4. Extreme view: force requires no more force than that required for penetration
5. Withdrawn Consent
a. Once penetration has been achieved, it is forcible rape if the male continues after the female
withdraws her consent
b. Rejects argument that male should be given reasonable time to withdraw in light of arousal of
his primal urge to reproduce (John Z.)

L. Mistake of Fact
1. General rule: if defendant reasonably believes a woman voluntarily consented, he does not
possess the intent necessary for rape conviction
2. Might want to look at the mistake chart here. General intent crime: rape. Mistake of fact is
reasonable; it’s a defense in most jurisdictions (not all). If the mistake was unreasonable it is
not a defense in all jurisdictions.
3. In Sherry defendant failed to ask for instruction on mistake; later, Massachusetts held mistake
of fact, without consideration of its reasonableness is not a defense (minority rule)
4. Mistake elements:
a. Actual belief
b. Reasonable belief
c. Did not intend the crime
d. And the crime would not be committed had the circumstances been as D believed.

M. Deception
1. Fraud in the factum negates consent: misrepresentation about the actual act. Doctor explains
he will insert instrument in v’s vagina; in fact, it’s his penis.
2. Fraud in the inducement (con artist) does not negate consent: misrepresentation that lead V to
enter into conduct with false or mistaken beliefs. Doctor tells woman her disease will be cured is
she has sex with a particular person (Boro)
3. While feminists may concede fraud in the inducement is not rape, it is still conduct that should
be punished.
4. These types of deceptions are not recognized as criminal
a. Intercourse w/”donor” will cure fatal disease
b. Intercourse with producer will make V a star
c. Intercourse with senior partner will get V a job
d. Intercourse w/paramour in return for “I love you”
e. Argument that maybe we shouldn’t punish for rape, but can we argue that it should be
punished in terms of fraud. In these types of deceptions, if money were what were taken
instead of sex, then it is punished in the terms of the crime of fraud.

N. Proving Rape

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 1. Rape Shield: deny opportunity w/o good cause to cross-examine victim or offer evidence about
her prior sexual conduct or reputation for chastity
2. Justification
3. May violate 6th Amendment right to confront and cross-examine accuser and present evidence on
his own behalf through the USSCt has upheld some rape shield statutes.
4. Generally, a trial judge may exclude relevant evidence if its probative value is outweighed by
undue prejudice.
5. To determine admissibility of evidence in rape trials court weighs
a. The interests of the rape shield laws in protecting V
b. Against the defendant’s right to confront and cross-examine (Lewis v. Wilkinson)
6. Lewis v. Wilkinson: case where the diary of the girl that seems to show that she is using the guy
as a scapegoat.
a. Only to the extent that it is material to a fact at issue and its probative value outweighs its
prejudicial effect.
b. Here the diary reflects information to prove her consent and to prove an improper motive.

O. Statutory Rape
1. Generally statutory rape
a. Has no mens rea requirement
2. Public Policy that supports strict liability in statutory rape is protection of society, the family and
the child.
3. Another public policy statement: young people lack capacity to consent because they are too
naive to understand the nature of the act and need protection from adult influences.

P. MPC Sec. 213.1(1)

1. “by force or threat of imminent death, serious bodily injury, extreme pain or kidnapping
2. Elements of 2nd degree rape
a. Sexual intercourse (broadly defined)
i. Intercourse per os or per anum
ii. “some penetration however slight”
iii. Emission not required.
b. By a man with a woman not his wife
c. And one of the following
i. Force or threat
ii. Drugs
iii. V is unconscious
iv. V is under 10 years old.
3. Mens rea: must act purposely, knowingly, or recklessly as to each material element
4. Basic rape is a 2nd degree felony
5. First degree felony if
a. Victim is injured
b. Victim was not a voluntary social companion with a sexual history with the accused.
6. Gross sexual imposition is a 3rd degree felony
a. Sexual intercourse
b. By a man with a woman not his wife
c. And one of the following
i. Threat that would prevent resistance by a woman of ordinary resolution (non-violent
threats like economic loss not allowed)
ii. Or he know she is so mentally impaired (but he did not cause her impairment)
iii. Or he knows that she is unaware that a sexual act is being committed upon her or that she
mistakenly believes that the actor is her husband.

Q. Differences between CL & MPC

1. MPC expands conduct that can constitute rape

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 2. Provides degrees of rape
3. Focus is on D’s conduct, not victim’s lack of consent (i.e. proof of resistance required)
4. Broader definition of rape includes violence directed at a 3rd person, threat to kidnap, etc.

R. Similarities between CL & MPC

1. Retains gender specific terms
2. Retains spousal immunity
3. Retains corroboration requirement
4. Special jury instruction re: victim’s testimony
5. Prompt complaint requirement

CHAPTER 9: DEFENSES: Generally

A. Burden of Proof
1. Burden of Production
a. To avoid directed verdict of acquittal the state must produce evidence of each element
b. To establish an affirmative defense, the defendant must produce evidence that the defense
applies.
2. Burden of Persuasion
a. To get a conviction, the state must convince the fact-finder of the existence of each element
beyond a reasonable doubt.
b. To avoid conviction, the defendant has to prove by preponderance of the evidence that he
meets the requirements of the affirmative defense.

B. State’s Case in Chief

1. State has the burden of producing evidence and persuading the fact-finder beyond a reasonable
doubt, of the concurrence of four elements of criminal responsibility as a general matter
a. Voluntary Act (or omission) by D
b. The social harm prohibited by the offense
c. The D’s mens rea (except for strict liability crimes)4
d. and the actual and proximate cause between the first and second elements

C. Over view of Defenses

1. State has the burden of producing evidence and persuading the fact-finder beyond a reasonable
doubt each element of the offense (prosecutor’s case in chief, aka prima facie case)
2. Even after the state meets this burden may raise
a. Failure of proof of defenses – state has failed to prove an essential element of the offense
charged
b. True defenses (affirmative defense: procedurally means defendant has burden)

D. Significance Between True Defense and Failure-of-Proof

1. Primarily Historical and Technical
2. Burdens May Differ
a. True Defense: D bears the burden of production and persuasion by preponderance of
evidence.
b. Failure of Proof: state bears the burden of disproving beyond a reasonable doubt D’s failure
of proof claim.
c. Note the standard for D’s burden is preponderance of the evidence, rarely you will see clear
and convincing. Never is the D’s burden beyond a reasonable doubt.

E. Significance of Difference between Justification and Excuse

1. Accomplice liability may differ
a. E.g., A provides D with gun to kill V.
i. Justification: D acquitted on self-defense, A too will be acquitted
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  Conduct that under the normal situation would be criminal
 BUT under the special circumstances of the case is the right thing to do. It is justified.
 Focus is on the act, not the actor. The effort is to demonstrate that the act was just.
ii. Excuse: D acquitted b/c insane; A will not be acquitted
 Although the actor has harmed society (harmful wrongful conduct)
 Nevertheless, the actor himself should not be punished for the conduct because of
some circumstance relating to the actor himself.
 Focus is then on the actor to show that he is not morally culpable.

F. Types of True Defenses

1. Specialized
a. Applies specifically to certain crimes only
2. Extrinsic
a. Raise public policy factors extrinsic to substantive criminal law doctrine
3. Justification
a. Conduct that is otherwise criminal but which under the circumstances is socially acceptable.
It’s the right thing to do.
4. Excuse
a. Although the actor has harmed society (committed a wrong), he should not be blamed or
punished.
Patterson vs. New York:
- Issue involved whether the due process clause would allow the burden to be placed on the
defendant to prove his affirmative defense: extreme emotional disturbance
- Court found that he was not deprived of due process. It is constitutional to allow the D to carry
this burden.
- Policy is one the one hand that we don’t want to make the burden of proving a crime to easy, but
we also don’t want to make it impossible by making the affirmative defenses (all of them) an
element of the crime.

People v. Goetz
- Reinstated an indictment because trial court erred in applying, a subjective standard of whether
D’s beliefs and reactions were reasonable to him
- Rather it must be determined
• Whether he believed deadly force was necessary to aver imminent use of deadly force
[honest belief]
• And whether, in light of all the circumstances, a reasonable person could have believed
use of a deadly force was necessary [objective reasonable belief]

CHAPTER 9: DEFENSES: JUSTIFICATIONS

A. Justifications
1. Defense of Self
2. Defense of Others
3. Protection of Property including home
4. Law Enforcement
5. Necessity (choice of evils)
B. Theories of Justification
1. Public Benefit Theory: homicide considered justifiable when it benefited society, and that benefit
is the underlying motive for the action taken (no longer the dominant theory)
2. Moral Forfeiture Theory: An actor forfeits his legal rights, nonconsentually, when he makes a
decision to violate the rights of others. In the extreme, one forfeits his right to life when he
threatens the life of another. Focuses on the interests of the “victim” or wrongdoer

36
 3. Moral Rights Theory: focuses on the interests of the defendant. Provides the actor with an
affirmative right to protect her threatened moral interest.
4. Superior Interest: balances the interests of the parties, and more broadly, the values that they
seek to enforce or protect are balanced.
C. Structure of Justifications
1. Triggering circumstances (trigger condition) permit a necessary and proportional response
2. Trigger: circumstances that must exist for justification
a. Necessary: to protect interest at stake; not too soon, not after the threat has ended.
b. Proportional: limits amount of force;
c. Peterson p 485Self-Defense:
d. Person who is the original aggressor may not invoke the right of self-defense.
i. Thinking about escalating to deadly force.
3. General Rule: One may use force on another
a. If he is not an aggressor and
b. If he is honestly and reasonably believes
c. It is necessary[proportionate response]
d. From the imminent use of unlawful force by the other.
D. Deadly Force in Self-Defense
1. One may reasonably use deadly force only if he reasonably believes it is necessary to protect
himself from imminent and unlawful use of deadly force.
2. Deadly force: Force likely to cause death or grievous bodily injury regardless of the actor’s
intention
3. Deadly force may not be used to repel aggression if such force is unnecessary.
E. The Aggressor
1. Aggressor is one whose affirmative unlawful act must be reasonably calculated to produce a
confrontation with injurious or fatal consequences
2. Status can be removed (deadly and non-deadly)
3. Aggressor may not be the one who started it: the situation is escalate by an affirmatively
unlawful act reasonably calculated to bring about injury or death.
F. Threat and Duty to Retreat
1. Threat
a. Imminent; at once
b. Future threat is insufficient
c. The threat must be unlawful; compare lawful arrest
2. Duty to retreat
a. Majority: retreat not necessary
b. Minority: must retreat [Texas requires retreat]
c. Castle exception: no one must retreat from his home
d. Also some jurisdictions: retreat from robbers/rapists not necessary
G. The reasonable Person
1. Majority: factfinder should hold the defendant to the standard of a reasonable person in his
situation
a. State v. Goetz: The test is objective, not subjective
b. State v. Wanrow: The jury is allowed to consider all circumstances known to D, past or
present.
2. There are minority positions allowing for various degrees of subjectivization
a. State v. Wanrow: some degree of subjectivity allowed in dealing with the idea of what a
“reasonable woman” could have known or been able/prepared to do against a male assailant.
Also allowed to know Justification of self-defense is to take into account all of the facts and
circumstances know to the D, including those known substantially before the killing.
b. The more you allow subjectivity, the more chance that the “reasonable person” will fit the
Defendant.
c. We want an objective standard to avoid “self-help” justice.
H. Self-Defense: Imperfect

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 1. Imperfect defense does not result in acquittal; it results in reduction of charge (usually, murder
to manslaughter)
2. Occurs in some jurisdictions when
a. Actor’s belief, though honest, was unreasonable
b. Besides reducing charges it can influence sentencing
3. Besides reducing charges it can influence sentencing
I. MPC Self-Defense: § 3.04(1)
1. Use of force on another is justified when
a. The actor believes
b. Such force is immediately necessary
c. To protect himself against
d. Unlawful force by the other
J. MPC Self-Defense: § 3.04(2) - Limitations
1. May not use to resist arrest (even unlawful) if the actor knows the other is a police officer
2. There are restrictions on use to resist force by property owner the actor knows is acting under a
claim
3. May not use deadly force unless actor believes necessary to protect self against
a. Death
b. Serious bodily harm
c. Kidnapping [not under common law]
d. Or forcible sexual intercourse [also different than the common law]
4. May not use deadly force if
a. Actor provoked use of force against himself
b. Or the actor knows he can retreat or surrender the property (a life respecting provisions)
i. But actor need not retreat from home or workplace (workplace is different than the
acceptable use of force in CL)
ii. Public officer need not desist from performing duty.
K. Justification: Self-Defense for abused women
1. Is she entitled to a jury instruction?
a. Confrontational – woman kills partner during the battering incident. Jury instruction is almost
always given
b. Non-confrontational – woman kills her partner after a lull in the violence or when he is asleep.
Courts are divided on whether self-defense jury instruction should be allowed
c. Murder for hire – woman hires someone to kill her abusive partner. Self-defense jury
instruction is never allowed
2. Is evidence of BWS admissible
a. Cycles
b. Why doesn’t she just leave?
i. Low self-esteem
ii. Learned helplessness: “quite important”
iii. Statistically much more dangerous when leaving?
c. Expert testimony: more widely accepted than it used to be.
3. Why try to fit women into a man’s defense? Why not a battered woman’s defense?
4. Justification and accomplices: If a battered woman gets help from another, the other
is protected by her claim of self defense.
5. Why justify rather than excuse? If woman is justified, that changes the husband’s rights to use
deadly force to defend himself against the deadly force threatened by his wife.
6. Why doesn’t self-defense work
a. Reasonable person is most often deemed to be a “reasonable man”
b. Imminence requirement might cause problems
L. Justification: Defense of Others
1. An actor is justified in using force against another to protect a third person when
a. A reasonable person in the actor’s position
b. Would believe the third person is in immediate danger of bodily harm

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 c. And force is necessary for the protection of the third person
2. Relationship
a. Early English cases limit the defense to protection of spouse, child, parent, relative, or
employee or employer
b. Modern view: No such relationship is required. Thus, one may intervene to protect friend,
acquaintance, stranger.
3. Belief must be reasonable
4. May not use excessive force.
5. Note that these elements tend to mirror
6. The Mistaken Defender
a. Alter Ego Rule: The defender’s right is co-extensive with that of the person he seeks to
protect (Young) – The Defendant’s knowledge is equal to that of the knowledge of the
protectee
b. Reasonable Belief Doctrine: So long as the defender reasonably believes that the other is
being unlawfully attacked, he is justified (Martin)
c. Why not just excuse, rather than justify?

M. MPC Defense of Others:

1. §3.05(1):Use of force against another to protect a 3rd person is justified
a. When the actor would be justified to use such force to protect himself from a similar threat
and
b. Under circumstances the actor believes to exist (more subjective than Alter Ego rule),
the 3rd person would be justified in using such force and
c. The actor believes his intervention is necessary to protect the 3rd person
2. §3.05(2)
a. But when the actor would have to retreat, he doesn’t have to unless he can assure the
complete safety of the 3rd person
b. And when the 3rd person would have to retreat, if he knew he could assure complete safety,
the actor must try to persuade him to do so before using force if the actor is sure he can
obtain complete safety.

K. Justification: Protection of Property

1. One may use non-deadly force against a would-be dispossessor if he reasonably believes it is
necessary to prevent imminent and unlawful dispossession
2. Deadly force may not be used to protect property

L. Justification: Protection of Home – MPC and Intermediate Position

1. Deadly force may be used if the actor reasonably believed
a. The other intends unlawful and imminent entry of the dwelling and
b. The intruder intends to injury him or another or commit a felony and
c. Deadly force is necessary to repel intrusion.

M. Justification: Protection of Home…At the Extremes

1. Broad: prevent any unlawful entry
2. Narrow: prevent only forcible felony or death or serious bodily injury to the occupant

N. Justification: Protection of Home – Spring Guns

1. Definition: mechanical devices that are set off when someone opens a door to a building
2. Common Law: permissible “where the intrusion is, in fact, such that the person, were he
present, would be justified in taking the life or inflicting the bodily harm with his own hands.
3. There is a trend against the allowable use of mechanical devices because they operate without
discretion (Cebellos)

O. Justification: Law Enforcement

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 1. The scope of public authority re: arrest is spelled out in the Fourth Amendment (unreasonable
searches and seizures)
2. Crime Prevention – felonies
3. Minority view: Deadly force is allowed if arresting person reasonably believes the other is
committing a felony and deadly force is necessary to prevent it.
4. Majority view: limits application of deadly force to “forcible or atrocious” felonies

Tennessee v. Garner: use of deadly force by an officer is not allowed to simply prevent a
nonviolent suspect from fleeing.

CHAPTER 9: DEFENSES: JUSTIFICATIONS: NECESSITY

A. In General
1. When actor encounters a force of condition that requires him to choose between
a. Violating a minor law
b. Or suffering (or allowing other to suffer) substantial harm to person or property

B. Requirements
1. Defendant is faced w/clear and imminent danger
2. Defendant can reasonably expect his action to abate the danger (causal relationship)
3. No legal alternative will abate the danger
4. Harm caused must be less than the harm avoided
5. The legislature has not acted to preclude the defense by clear and deliberate choice regarding
the values at issue
6. Clean hands; didn’t put self in the situation

C. Residual Defense, Other Limitations

1. A residual defense (defense of last resort)
2. Other limitations
a. Some jurisdictions limit to natural disasters
b. Does not apply to homicides (Dudley and Stephens)
c. Use may be limited to protecting person or property. Thus, saving reputation would not
qualify.

D. MPC § 3.01 Choice of Evils

1. Conduct is justified
a. If the actor believes his conduct is necessary to avoid harm to self or another
b. If the harm to be avoided is greater than that sought to be prevented by the statute
c. If there are no exceptions or defenses dealing with the situation
d. It doesn’t otherwise appear that the legislature excluded the justification.

E. Compare MPC and CL

1. Under the MPC, the defense is much broader than under the CL
a. Imminence requirement is rejected
b. A person does not automatically lose the defense because he was at fault in creating the
situation
c. It is a defense of general applicability
 Not limited to emergencies created by natural forces
 Not limited to physical harm to persons or property
 May be used in homicide prosecutions

Nelson v. State: There’s a balancing test here between the harm actually caused and the
harm averted by the act. That’s the very definition of necessity.
3 elements in Nelson

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 1. The act charged must have been done to prevent significant evil
2. There must have been no adequate alternative
3. The harm caused must not have been disproportionate to the harm avoided.

DURESS

A. Excuses: Types
1. Duress (coercion)
2. Intoxication (voluntary or involuntary)
3. Mental disorders
a. Competence to face trial
b. Insanity
c. Diminished capacity
d. Competence to be executed (capital cases only)
4. Infancy
5. Entrapment: police induce defendant to commit a crime he wasn’t predisposed to commit
6. Consent

B. Duress
1. Elements
a. Someone threatens to kill or grievously injure
b. The actor or another
c. Actor reasonably believes the threat was genuine
d. Threat was imminent at the time of the crime
e. No other reasonable escape from threat
f. Clean hands
2. Common Law Duress: never a defense to homicide
a. May be an imperfect defense reducing murder to manslaughter
b. May be a defense to felony-murder if it is a defense to the underlying felony

C. MPC §2.09 Duress

1. Threat of unlawful force
2. Against actor or another
3. Such that a person of “reasonable firmness” in defendant’s situation would yield
4. Defendant did not recklessly put himself in that situation
5. Defense available for any crime, including homicide

D. Compare: MPC and CL Duress

1. MPC abandons imminence requirement
2. MPC eliminates deadly force
3. MPC doesn’t limit application to close family members
4. MPC reasonableness requirement is made somewhat subjective
a. One in actor’s situation
b. Allowing consideration of gender, size, etc.
5. MPC duress can be applied to homicides

E. Escape from Intolerable Prison

1. Some view it as necessity (justification)
2. Others, as duress (excuse)

F. Duress v. Necessity
1. Necessity (natural force)
a. Starvation
b. Tornado

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 c. Appendicitis
2. Duress (created by person)
a. Terrorist
b. Organized crime
c. kidnapper

G. Factors: Escape from Intolerable Conditions

1. Actor faced w/ specific threat of death, forcible sexual attack or substantial bodily injury in
immediate future
2. No time for complaint or history of futile complaints
3. No time or opportunity to resort to courts
4. No evidence of force or violence against prison personnel or other innocent persons in the
escape

CHAPTER 9 – DEFENSES: INTOXICATION

A. Proof of Intoxication
1. Mere intake is not sufficient, has to be enough to effect a person’s ability to reason
2. Evidence of intoxication
a. Amount consumed
b. Time Period
c. Other’s reports of actor’s conduct
d. Odor of alcohol
e. BAC (certain levels are presumptively drunk)
f. Actor’s ability to remember important events.
g. Physical effects
h. Emotional effects, mood, liquid courage

B. Intoxication Generally
1. Cause by alcohol or drugs
2. Voluntary: one who knows or should know what he’s taking is likely to produce intoxication.
a. Addicts are voluntary
b. Alcoholics are voluntarily
3. Involuntary: One who consumes such substances other than by choice or design:
a. Coercion
b. Pathological Intoxication’
i. Atypical reaction, actor cannot have known about it.
ii. Re: unexpected reaction to Rx meds
c. Innocent mistake

C. Involuntary Intoxication
1. Involuntary intoxication is a defense to any crime if it caused
a. Temporary insanity according to definition of insanity in jurisdiction
b. Didn’t know difference between right and wrong or unable to conform conduct

D. Intoxication as an Element
1. Sometimes intoxication is an element of the crime, P has burden to show that intoxication was
present in order to prove the crime.
2. e.g. Tex Crim. Code Sec 49.05 Flying While Intoxicated
a. A person commits an offense if the person is intoxicated while operating an aircraft.
i. Conduct: operating aircraft
ii. Attendant circumstance: intoxicated

E. Voluntary Intoxication and Actus Reus

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 1. Generally, a claim that voluntary intoxication rendered the defendant’s conduct involuntary is
rejected.
2. Rationale: the decision to drink was voluntary

F. Voluntary Intoxication and Mens Rea (Failure of Proof)

1. Evidence of voluntary intoxication is not admissible to defeat mens rea in general intent crimes
2. Evidence of voluntary intoxication may be admissible to defeat mens rea in specific intent
crimes.
a. Some state prohibit admission of intoxication evidence; no Due Process violation
b. As a matter of public policy, it doesn’t make any sense to allow a person who puts himself
into that mental condition to then use that condition to escape culpability.
c. 10 states have statutes that preclude the introduction of evidence of intoxication regardless
of the effect on mental state.

3. Commonwealth v. Graves
a. A person can introduce evidence of intoxication such that their specific intent was overcome.
(This changes later – state legislature disallowed in a statute written in response to this case)

G. Common Law Categories of Crimes

1. General Intent
a. Battery
b. Rape
c. Kidnapping
d. False Imprisonment
e. Assault
2. Specific Intent
a. Assault (intent to cause bodily injury)
b. Arson (starts fire w/intent to destroy property)
c. Larceny (intent to deprive)
d. Robbery (intent to deprive)
e. Burglary (entry w/purpose to commit crime)
f. Forgery (w/purpose to defraud or injure)
g. Solicitation (w/purpose of promoting the commission of a crime
h. Conspiracy (“”)

H. Voluntary Intoxication: Impact on Defense

1. Voluntary Intoxication may make defenses more difficult to establish
2. Examples
a. Self-defense, has to hold a “reasonable belief” in the danger…his intoxication may give him
an unreasonable belief.
b. Voluntary manslaughter: “reasonable provocation”, how reasonable is a drunk person in
determining the provocation
c. Mistake of fact: “reasonable mistake”

I. MPC Intoxication
1. Three types of intoxication per Section 2.08(4) – (5)
a. Self-induced
b. Pathological
c. Involuntary
2. Exculpation
a. Any kind of intoxication is a defense if it negates an element of the offense (except
recklessness)
b. And pathological intoxication and involuntary intoxication are affirmative defenses if caused
by a mental condition comparable to insanity under the MPC Sec. 2.08(4)

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 3. MPC Definitions (Section 2.08(5))
a. Intoxication – a disturbance of mental or physical capabilities resulting from the introduction
of substances into the body.
b. Self-induced intoxication – taking substances one knows or should know have a tendency to
cause intoxication unless taken pursuant to medical advice or when one would otherwise
have a defense to a crime such as duress.
c. Pathological intoxication – intoxication grossly excessive in degree, given the amount of the
intoxicant, to which the actor does not know he is susceptible.

CHAPTER 9 – DEFENSES: MENTAL CONDITIONS – COMPETENCE & INSANITY

A. Excuse: The Insanity Defense

1. An excuse that permits inquiry into a defendant’s capacity to know the law or exercise free will
2. Compare w/other defenses: no aquital; commitment to mental institution until no longer
dangerous.

B. Pleas – see slide 3 in this section

C. Compare Mental Illness & Insanity

1. Differentiate concepts
a. Mental illness: a medical diagnosis a disease or defect of the mind
b. Insanity: a legal conclusion reached w/aid of experts that completely or partially exonerates
the defendant because of the mental illness.

D. Legal Significance of Mental Conditions at Various Times

1. Competence to stand trial
2. Sanity at the time of the crime
a. Insanity defense
b. Diminished capacity
3. When post conviction disposition is made including the decision to release
4. Competence to be executed (capital cases only)

E. The Supremes have held that a person may not stand trial unless he is competent.
1. Policies.
a. D is the best person to testify to his own acts
b. What can I accept as a plea bargain,
c. Is this person going to make a good witness?
2. Standard: Common law requires that a D
a. Have the capacity to consult w/lawyer w/reasonable degree of rational understanding and
b. Have a rational as well as factual understanding of the proceedings against him
(Dusky v. US)
3. Competence to Stand trial may be raised
a. By D, P or judge
b. At any time, including during the trial
4. As a result of an incompetence finding criminal proceedings are suspended and may
a. Be released (minor crime)
b. Held in mental institution
i. Until competent
ii. Or until civilly committed if he is a danger to himself or others
5. It is constitutional to assume D is competent to stand trail: burden of persuasion on the D to
prove insanity.

F. MPC Competence to Proceed

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 1. MPC §4.04 – No person who, as a result of disease or defect lack capacity to understand the
proceedings against him or to assist in his defense shall be tried, convicted or sentenced for the
commission of an offense so long as incapacity endures.
2. §4.05 – Procedure

G. Pleas
1. Guilty (guilty or nolo)
2. Not guilty (irrespective of sanity – includes both affirmative defenses and failure of proof.
3. Not guilty by Reason of Insanity (NGRI): because of insanity, mens rea fails
4. Guilty but Mentally Ill (GBMI)
a. State has proven all elements proven BRD;
b. no defenses; but D is mentally ill
c. If illness is treatable, D is sent to mental health facility, if he is treated before sentence ends,
he is returned to prison to finish out sentence.
5. Burden of Proof
a. Now it falls on the D to prove by preponderance of the evidence that he was insane.
b. Then at that point the state has to prove sanity Beyond Reasonable Doubt.
6. Insanity Aquitee after trial
a. Some jurisdictions will automatically send that acquitee to a mental health facility.
b. Some jurisdictions will allow a court to conduct a hearing to determine commitment.
c. Civil commitment, the standard is to prove by C & C evidence that he is insane and a danger,
but if there are criminal charges behind the commitment, use the standard preponderance of
the evidence.
i. Policy: gives state a lower burden given that the jury HAS decided that a crime has been
committed.
d. NGRI – commitment can be longer than the maximum sentence for the crime. Risk to think
about it. This causes some mentally ill defendants to decline to use the Insanity plea.
e. Foucha rule: p 616

H. Pre-trial procedures:
a. Special plea "not guilty by reason of insanity
b. Split on whether a trial judge may interpose an insanity plea over the objections of a
competent defendant
c. Notification of experts supporting insanity defense that may be called.
d. Verdict sometimes allowed "guilty but mentally ill": results in mental treatment during
incarceration.

I. Post Trial Disposition:

a. NGRI verdict: automatic commitment in many states, some states allow for observation in a
mental health facility to determine if civil commitment is indicated.
b. Commitment requires present mental illness and a danger to himself or others. Clear and
Convincing standard for civil matters, when acquitted of a crime based on mental illness
some states allow the reduced burden of preponderance of the evidence.

J. Sexual Predator Laws:

a. If judge finds probable cause that the D is a sexual predator, he is ordered to attend a mental
health facility for evaluation, after which a full hearing is held.
b. If determined that D is a sexual predator BRD, result is commitment until he is so changed as
to be safe at large.
c. Rule has withstood constitutional challenge.

K. Rationale for the Insanity Defense

1. Incarcerating the MI cannot deter them because the illness renders them unable to heed
warnings

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 2. Incarcerating the MI doesn’t serve rehab
3. Punishing person who are not morally culpable doesn’t serve retribution
4. Incapacitation might be the only justification

L. Criticism of the Insanity Defense

1. Dangerous
2. Mad or bad? Mental health professionals can’t separate the mad from bad.
a. Bad people are appropriate to send to correction
b. Mad people are those who are appropriate to send to medical facilities.
3. Unable to verify empirically; malingering
4. MI exists along a spectrum: no bright line
5. No one is ever responsible for misconduct.

M. Excuse: the Insanity Defense’

1. Competence at the time of the crime
2. Tests
a. M’Naughten (majority rule) – insane person doesn’t know what he’s done is wrong (or just
doesn’t know what he’s done)
i. No volitional prong (i.e. no intention aspect)
b. Irresistible Impulse – added volitional aspect (acted as an impulse)
c. Durham – conduct is the product of mental illness (test doesn’t define mental illness)
d. MPC – cannot appreciate (not just know) the wrongfulness of conduct (cognitive prong) OR to
conform conduct to law
i. Appreciate v. know: 5-year-old may know that pulling a trigger will kill someone, but they
may not appreciate that the person wouldn’t be able to get right back up (like in cartoons)
3. Post Hinkley, test have gone full circle. Hinkley Pg. 624-25
4. Very controversial

N. Moral/Legal Wrong
1. Legal Wrong: a person is criminally responsible if he has substantial capacity to appreciate that
his act violates the law.
2. Moral Wrong: A person is criminally responsible, regardless of his appreciation of his act’s legal
wrongfulness, if he is aware at the time of the offending act that society morally condemns
such acts.
3. Subjectively morally wrong
a. Not followed by any jurisdiction
b. One is not criminally responsible if, because of mental disease of defect, he believed that
he is morally justified in his conduct – even though he may appreciate either that his act is
criminal or that it is contrary to public morality.

O. Hybrid in Wilson
1. A defendant is not criminally responsible if, because of mental disease or defect, he lacks the
substantial capacity to appreciate the wrongfulness of his act.
2. i.e. when he can prove he substantially misperceived reality and harbored a delusional belief
that society under the circumstances as the defendant, honestly but mistakenly
understood them, would not have morally condemned his actions.

P. Deific Decree Doctrine p. 640

1. One is not criminally responsible if, because of mental disease or defect, he believes that God
personally spoke to him and ordered him to commit a crime.

Q. Insanity: the M’Naughten Test

1. An insane person doesn’t know
a. The nature and quality of what he’s done

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 b. Or, if he did, he doesn’t know that what he was doing was wrong.
2. Cognitive only: Doesn’t take into consideration advances in knowledge of human behavior.
3. Almost complete impairment
4. Moral wrong or legal wrong

R. Inanity: Irresistible Impulse

1. Adapted M’Naghten by adding volitional impairment
2. Standard: Acted from irresistible/uncontrollable impulse
3. AKA, policeman-at-his-elbow-test: argument is that this is behavior he would have done even
with a cop right next to him.
4. Calls for a complete destruction of the governing of the mind
5. Incorrectly creates the assumption that there is something explosive about the conduct or
circumstance.

S. Insanity: the Durham Test

1. Conduct is the product of mental illness
2. But test doesn’t define MI
3. Give juries inadequate guidance, w/o more guidance for juries, experts usurp their role

T. Insanity: MPC
1. She thinks this is very sensible formulation even though it is not the majority rule any
longer.
2. Lacks substantial capacity to either
a. Appreciate [not just know] the criminality or wrongfulness of his conduct [cognitive prong]
b. OR to conform his conduct to the law [volitional prong]
3. MPC test was once the majority. We’ve now returned to M’Naghten
4. Expands the kind of psychological impairment that can be excused beyond the traditional
common law.
5. Substantial is enough, total impairment not required
6. Expands the scope of expert testimony, but is not as strong as Durham test
7. Sociology excluded: Sociopaths with no affect, but they don’t care.
8. Appreciate instead of know

Federal test: requires severe mental defect.

U. Competency for Execution

1. Death penalty cases only
2. Both the constitution and common law prohibit executing persons who are insane
3. Whether an inmate on death row can be force medicated with psychotropic drugs to produce
“artificial” sanity so he can be executed is not yet decided.
a. Some case law tells us that a person has a prevailing interest in not being forced to take
drugs.
b. Some case law states that if the drugs can make him less violent in order to keep himself and
others safe.
c. No case law has decided if we can give meds just so that we can kill them.

V. Role of Experts
1. Expert witnesses cannot just be ignored

CHAPTER 9: DIMINISHED CAPACITY

A. Excuse: Diminished Capacity

1. Allows an actor’s abnormal mental condition (short of insanity) to exonerate him or result in a
conviction of a lesser degree

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 2. Two circumstances
a. Failure of proof (mens rea)
b. Partial responsibility (mitigates murder to manslaughter)
i. Specific intent crimes only
ii. General intent crimes as well.
3. Controversial: most jurisdictions abolished it
B. Justifications for Diminished Capacity
1. Ameliorates harshness of insanity defense
2. Allowed avoidance of death penalty
3. Allows refined determinations of culpability
C. MPC and Diminished Capacity
1. MPC §4.02 – allows evidence of mental disease of defect whenever it is relevant to prove or
disprove any mental state.
2. MPC §210.3(1)(b) – Recall murder is reduced to manslaughter if under the influence of extreme
mental or emotional disturbance for which there is a reasonable explanation.
D. Snapshot of Juvenile Crime
1. US made 2.3 million arrests of persons under 18
2. 1.9 million of 2.4 million juveniles arrested had substance abuse and addiction involvement
3. Still only 68,600 juveniles received SARx
4. More than 1 in 4 persons in the general population are under age 18
5. Juvenile minorities will experience the most growth in 1995-2015
E. Juvenile Court
1. Juveniles were originally tried in adult criminal court and sentenced to adult prisons
2. Juvenile courts (late 19th century) brought different perspective
a. Rehab, not punishment
b. Delinquents, not criminals
c. Adjudications, not trials
3. Warren Court (1960s: Due process revolution; nationalized law per constitution
F. Excuse: Infancy Defense
1. Child under seven presumed conclusively to be too young to formulate the mens rea for criminal
liability
2. Child over seven but under 14 were presumed incapable but the presumption could be rebutted
3. Child over 14 = > adult culpability
G. Juvenile Courts and Infancy
1. Majority: The infancy defense does not apply in juvenile court (In re: Tyvonne J.)
2. Minority: Jurisdiction of the juvenile court over one under 14 requires clear proof of that the child
understood the wrongfulness of the act. i.e. approves the infancy defense.
H. Infancy: Burdens
1. Defendant: proof of age invokes presumption
2. State: produce evidence to persuade fact finder BRD that defendant knew right from wrong
3. Today, most children are adjudicated in juvenile courts. E.g., MPC 16 years old.
I. Rebutting the Statutory Presumption of Incapacity
1. Factors to determine if the child knew the difference between right and wrong
a. Nature of the crime
b. Child’s age and maturity
c. Whether the child showed a desire for secrecy
d. Whether the child admonished the victim not to tell
e. Prior conduct
f. Any consequences that attach to the conduct
g. Acknowledgement that the act was wrong and could lead to punishment.

CHAPTER 9: NEW DEFENSES

A. New Defenses

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 1. Not universally accepted
2. Defenses
a. Euthanasia
b. Addiction/Alcoholism
c. Rotten Social Background
d. Cultural Defense
B. Euthanasia
1. Kervorkian update
a. Serving 10-25 at Thumb Correctional facility in Michigan
b. Eligible for parole in 2007
c. Latest interview I could find Oct 2005
2. Gonzales v. Oregon (2005) Supremes upheld Oregon’s Death with Dignity Act
a. Controlled Substances Act doesn’t allow AG to prohibit doctors from prescribing regulated
drugs for use in physician-assisted suicide under allowable state law.
C. Addiction/Alcoholism
1. Intoxication <= from addiction or alcoholism is voluntary
2. First drink, first drug use is voluntary
3. State may regulate or criminalize drug or alcohol
a. Manufacture
b. Sale
c. Possession
d. Use
4. But not addiction
D. Rotten Social Background
1. One who commits crime b/c social deprivation should be acquitted
a. He doesn’t’ deserve condemnation
b. We lack standing to judge him
2. No legitimacy b/c there’s no community bond with the disenfranchised poor
3. Correlation
a. Crime
b. Poverty
E. Cultural Defense
1. Focus: Whether conduct was envisioned by the legislature in defining the crime
2. Factors
a. The character, experience and background of defendant indication whether he knew of
illegality
b. Whether defendant knew of the consequences of violating the statute
c. Circumstances concerning the offense
d. Harm caused by the infraction
e. Its probably impact on the community
f. Seriousness of infraction in terms of punishment (which can be suspended)
g. Mitigating circumstances
h. Possible improper motives of prosecutor or complainant
i. And any other data regarding the culpability of the offense committed by the defendant.
F. Alternatives to Cultural Defense.
1. De minimus statutes
2. Prosecutorial discretion
3. Jury nullification
4. Judge’s sentencing discretion

INCHOATE (Incomplete) OFFENSES

Introduction

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A. General Principles
1. Three Types of Inchoate crimes are attempt, conspiracy, and solicitation
2. Inchoate crimes: The object of the criminal conduct is called the “target offense (and sometimes
“substantive offense”)
B. Inchoate Crime Look Alikes
1. Conduct has not yet brought about harm, but allows for preventative enforcement
2. Examples: (burglary, stalking, possession of burglar’s tools, reckless driving,
Posession of controlled substance w/intent to distribute)
C. Inchoate: Imperfect and Incomplete
1. Crime may be inchoate for one of two reasons:
a. Complete but imperfect: This occurs when the actor performs all of the acts that she set out
to do but fails to attain her goal (gunshot misses)
b. Incomplete: This occurs when the actor does some of the acts necessary to achieve the
criminal goal, but she desists or is prevented from continuing (cops arrive)

Attempt

A. General Principles of Attempt

1. Definition: An attempt is an overt act that is done with the intent to commit a crime but then
falls short of completing that crime.
2. Common Law Elements:
a. Mens rea (Two Intents)
 With purpose to promote or facilitate the commission of an offense
 And intent to commit the substantial step
b. Actus reus
 Defendant commits an act that constitutes a substantial step toward committing an
offense (tests follow)

B. Texas Attempt Statute, Sec 15.01, Penal Code

1. Attempt: A person commits an offense if,
a. With specific intent to commit an offense,
b. He does an act
c. Amounting to more than mere preparation
d. That tends but fails to effect the commission of the offense intended.
2. An offense under this section is one category lower than the offense attempted, and if the
offense attempted is a state jail felony, the offense is a Class A misdemeanor.

C. MPC §5.01(1)
1. One commits attempt
a. If he acts with the kind of culpability required for the target crime
b. And does one of the following
 If he purposely engages in conduct…
 Or when…result is an element…, does or omits to do any thing [to cause] or with the belief
that it will cause such a result without further conduct on his part
 Or commits …an act or omission constituting a substantial step
2. §5.01(2) “Substantial step” – must be strongly corroborative of the actor’s criminal purpose

D. Six Stages of Criminal Activity

1. Actor conceives the idea of committing a crime – not punishable
2. She evaluates the idea, to decide whether to do it – not punishable
3. She forms the intention to go forward – not punishable

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 4. She prepares to commit the crime, gathering what’s needed – inchoate
5. She commences commission of the offense – inchoate
6. She completes the crime – punishable for the offense committed.

E. Grading Attempts
1. Attempted felony is graded as a felony but punished as a lesser offense than the target crime
2. Grades
a. Capital or punishable by life: set at specific term of years
b. Lesser felonies: Half (or some similar formula) the maximum for target offense.
3. MPC grades equal to the target offense except in capital crimes.

F. Relationship: Attempt & Target offense – the merger Doctrine

1. If an offender successfully completes the target offense, he cannot also be convicted of an
attempt.
2. Attempt is a lesser included offense of the crime attempted and will merge if the prosecution
proves the completed offense.
3. In most jurisdictions, aggravated assault will merge with attempted murder

G. Justifications for Punishment of Attempt

1. Enable intervention
2. Added deterrence?
3. Attempter are also dangerous
4. Fairness
5. Disturbing public repose

H. Attempt Mens Rea, Common Law

1. General rule: the mental state is the intent to commit some other crime
a. Intentionally (mens rea) commit the substantial step (actus reus)
b. Do those acts with the specific intent of committing the target offense.
c. Thus, attempts are always specific intent crimes, even when the target offense is a general
intent crime.

I. Attempted Murder
1. A finding of “intent to kill” is necessary for an attempted murder conviction (Gentry)
2. Attempt to murder can only be of the intent to kill type. In most jurisdictions, there is no attempt
to commit.
a. Depraved-heart murder
b. Felony murder (Bruce)
c. Or intent to inflict grievous bodily harm murder
3. Similarly, voluntary manslaughter <= intent to kill + provocation. Attempted voluntary
manslaughter is cognizable.

J. Distinguishing Preparation from Perpetration

1. Last Act
2. Dangerous Proximity
3. Unequivocality (RIL)
4. Physical Proximity
5. Probable Desistance
6. Abnormal Step
7. Indispensable Element
8. MPC Substantial Step

K. MPC Attempts Actus Reus

1. Substantial step test:

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 a. Must have done or omitted to do something that constitutes a “substantial step” in a course
of conduct planned to culminate in his commission of the crime
 Done or omitted
 Substantial step
 Planned to culminate in commission

L. MPC Examples of Conduct Sufficient Under the Substantial Step Test (focuses on what has BEEN
done…not what is left to do)
1. Searching for victim
2. Reconnoitering the crime scene
3. Unlawfully entering a building where the defendant contemplates committing the
crime
4. Possessing tools or instruments necessary for committing the crime near the crime
scene
5. Soliciting an innocent agent to do an element of the crime

M. MPC Attempt -- 5.01(l)

1. A person commits an attempt if, acting with the same state of mind otherwise required for
commission of the target offense, he
a. purposely engages in conduct that would constitute the crime if the attendant circumstances
were as he believes them to be
b. OR, for a result crime, does or omits to do anything with the purpose of causing or which he
believes that it will cause the result without further conduct on his part
c. OR, 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 the planned crime.

N. MPC Substantial Step: Reeves

1. State v. Reeves
a. Possession, near scene of planned crime, of material necessary for a crime but having no
lawful purpose, amounts to a substantial step if it is strongly corroborative of the defendant's
purpose.
b. Having rat poison at school was sufficiently corroborative of school girls’ purpose to kill
teacher (jury allowed to so find).

O. Defense to Attempt: Impossibility

1. *** EXAM *** Factual is not a defense, legal is
2. CL:
a. Legal impossibility is a defense
b. Factual impossibility is not a defense
3. MPC:
a. Neither legal nor hybrid factual impossibility is a defense.
b. Comments suggest pure legal impossibility is a defense
4. U.S. v. Thomas p 780 note g
a. Held: The fact that the intended rape victim was dead at the time of defendant's acts on her
does not bar conviction for attempted rape
5. Legal vs Factual
a. Factual:
 Exists when the D's intended end constitutes a crime but she fails to consummate it
because of a factual circumstance unknown to her or beyond her control. (attempt would
have been successful had the circumstances been as D supposed)
 He was factually wrong about her being alive and does not excuse him from a rape
b. Legal:
 Pure legal impossibility exists if the criminal law does not prohibit D's conduct or the result
that she has sought to achieve. (D believes it's criminal, but it's not)

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  Hybrid legal impossibility exists if D's goal was illegal, but commission of the offense was
impossible due to a factual mistake by her regarding the legal status of some factor
relevant to her conduct. (contains both a legal AND factual aspect to it)
 Dressler believes that in hybrid cases, you should take the factual impossibility stance and
chose no defense.
6. See chart on Defenses under Specialized (Offense Modification)

P. Defense to Attempt (also Solicitation): Abandonment

1. Early CL did not allow the defense
2. Today some allow if D did not abandon b/c
a. About to be caught
b. More difficult than anticipated
3. MPC Allows “renunciation” in some circumstances (renunciation = abandonment)
a. Result crimes only (or a circumstance as element; not available for conduct crimes)
b. Voluntary
c. Complete
4. If allowed, abandonment is an affirmative defense (must prove by preponderance of evidence)
5. McClosky
a. Prisoner was exonerated where he cut fence to escape then changed his mind and returned
b. Found voluntary and complete abandonment b/c prisoner didn’t know he had tripped alarm.
c. Concurrence suggests that the court should not have looked at preparation vs. perpetration,
that this is a true abandonment defense.

Battery Mayhem and Assault

A. Battery
1. Types
a. Physical attack: unlawful use of force of another willfully or in anger
b. Offensive contact: intentional offensive touching or bodily injury
2. In some jurisdictions, battery is called assault
B. Mayhem
1. Permanently dismembering or disabling another
2. Technically, an aggravated battery
3. Felony
4. E.g., biting off on ear; dismembering a sex organ
C. Assault
1. Two kinds:
a. Attempted battery
b. Apprehension of a battery
2. No attempted assault, by most views
a. If you have an attempted battery, it’s an assault; if you attempt to assault, there is no such
thing.
b. Most jurisdictions say there is no such animal
c. Perkins disagrees; you can attempt to make someone have imminent apprehension of a
battery and fail
3. When we talk about attempted battery, the courts rather strictly talk about proximity
D. Aggravated Assault
1. Graded more seriously and punished more severely than simple assault
2. An assault may be aggravated based on
a. Intent to commit more serious crime (i.e. murder)
b. Particularly dangerous means
c. Resultant harm
d. Particular person
E. Assault
1. State v. Boutin p 796
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 a. Evidence showed that defendant and victim were in a scuffle. D was 10 ft away was walking
toward victim with bottle raised over his head.
b. Evidence was insufficient to support assault
c. Under the common law assault does not occur until the defendant within apparent reach of
the victim.

SOLICITATION AND CONSPIRACY

Solicitation
A. Solicitation Definition: involves the asking, enticing, inducing, or counseling of another to
commit a crime.

B. Solicitation Elements (occurs as soon as offer is made)

1. Mens Rea
a. With purpose to promote or facilitate the commission of an offense
b. And the intent to command, request, encourage, etc.
2. Actus reus
a. The D commands, requests or encourages another to commit a crime.

C. Solicitation Debate: State v. Mann

1. Dangers of Solicitor
a. Conceives
b. Greater intelligence
c. Leader
d. Hides behind others
2. Counter
a. No harm until agreement => conspiracy
b. Reluctance
c. Thought police = 1st amendment

D. Common Law Solicitation

1. At CL, it was punished as a misdemeanor
2. Nearly all states have general statutory prohibitions on criminal solicitation
3. Complete as soon as solicitor makes the request, regardless of whether the person
solicited accepts or rejects.

E. MPC Solicitation §5.02

1. Applies to all crimes
2. Defendant-participant is included
3. Uncommunicated requests for help committing a crime (letter never received) is a solicitation
4. But see Cotton where solicitation conviction was reversed b/d legislature had omitted provision
saying uncoummunicated requests are solicitations

F. Comparison of Solicitation and Attempt

1. Attempt requires act (substantial step) but solicitation can occur much earlier in planning since it
requires only an offer
2. In solicitation, a 2nd party is recruited to participate in the crime but an attempt may be made by
a single individual
3. Attempt generally carries heavier sentences than solicitation

Conspiracy
A. Sequence of Inchoate Offenses (if all are present)
1. Solicitation => Conspiracy => Attempt => Target Offense Completed
2. NOTE: Conspiracy: (CL does not merge; MPC merges)

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B. Merger Illustrations
1. A solicits B to rob C.
a. A has committed solicitation.
b. Solicitation is complete with the request.
2. A solicits B to rob C and B refused to rob C.
a. A has committed solicitation
b. ....regardless of whether the one solicited accepts or rejects.
3. A solicits B to rob C and B accepts (sufficient under CL. MPC and some jurisdictions require an
overt act as well.)
a. A and B have committed conspiracy.
b. A’s solicitation merges into conspiracy.
4. A solicits B to rob C. B agrees and attempts but fails to rob C.
a. B has committed conspiracy and attempted robbery.
b. Conspiracy does not merge with attempt.
5. A has committed conspiracy and an attempted robbery (per rules of complicity).
a. A’s solicitation offense merged into attempted robbery, but the conspiracy did not.
6. A solicits B to rob C and B accepts and attempts and succeeds in robbing C.
a. B has committed conspiracy and robbery.
b. B’s attempt merged into robbery but conspiracy still stands.
7. A has committed conspiracy and robbery (per rules of complicity).
a. A’s attempt merged into robbery but conspiracy still stands.

C. Common Law Definition of Conspiracy

1. An agreement by two or more persons to commit a crime or to commit a lawful act in an unlawful
manner (corrupt, dishonest, fraudulent or immoral)
a. Early CL broad
b. Today most require criminal object
2. An additional actus reus requirements
a. Early CL agreement alone sufficient
b. Today, at least one co-conspirator must make an overt act in furtherance of the conspiracy
(IFOTC). Some jurisdictions require a substantial act.

D. The Prosecutor’s Darlin’

1. Conspiracy and target offense can both be prosecuted
2. Procedural advantages
a. Hearsay
b. Venue
c. Joint trial of co-conspirators
d. Conspirators liability for others’ conduct
e. Statute of limitations begins when conspiracy ends
3. Earlier threshold for criminality than attempt

E. Purposes of Conspiracy Doctrine

1. Punish preparatory conduct (conspiracy as inchoate offense)
2. Punish conspiracy as a harm itself (conspiracy as aggravation)

F. Group Criminality: carries greater risk because there is

1. a division of labor
2. Pooling resources
3. Expanded scope of potential harm
4. Mutual encouragement
5. Greater likelihood the agreed upon crime will be committed

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G. Pinkerton Doctrin
1. A co-conspirator is liable for commission of the substantive offense IFOTC by another co-
conspirator even if there is no evidence that he directly participated
2. A co-conspirator can relieve himself of liability for the acts of another co-conspirator’s acts IFOTC
by withdrawing from the conspiracy

H. Hearsay against Co-Conspirators

1. A hearsay statement made IFOTC is admissible against all conspirators
2. A statement in furtherance of co-conspirator’s efforts to avoid criminal punishment is not a
statement in furtherance of the conspiracy

I. Criticism of Conspiracy
1. Vague
2. Conviction possible before commits any act at all
3. Predominately mental b/c it is a meeting of the minds
4. Person cannot be convicted for conspiracy to commit murder by implied malic murder
a. One cannot agree to commit an unintentional act

J. MPC Conspiracy
1. A person commits conspiracy with another person, if he agrees with such person to commit an
offense.
2. MPC requires that the object of the conspiracy be a crime

K. Conspiracy Suppliers
1. To hold a supplier liable the state must show both knowledge of illegal use and intent to further
that use. (Lauria)
2. A supplier can be shown to have intent by
a. Direct evidence he intends to participate
b. Inference of his intent to participate based on
c. Special interest in the activity (acquiring a stake)
d. When no legitimate use exists
e. When the volume is disproportionate to legitimate demand
f. When the nature of the crime is aggravated

L. Common Law Punishment and Grading

1. Today in most jurisdictions, conspiracy is a separate substantive offense (conspirators may be
tried, convicted and punished for both)
2. Conspiracies to commit felonies are felonies

M. MPC Punishment and Grading

1. Same grade and degree as most serious target offense (except capital and 1st degree)
2. Doesn’t permit conviction for both conspiracy and attempted offense or completed target
offense
3. May be convicted of as many target offenses as were committed IFOTC whether as perpetrator
or accomplice.

N. Actus Reus of Conspiracy

1. Commonwealth v. Azim: evidence that defendant drove the car, waited at the wheel while other
mugged the victim and then drove assailants from the scene was sufficient for a fact finder to
find beyond reasonable doubt that he conspired with others to commit assault and robbery.
2. unpremeditated, chance encounter and an opportunistic rape cannot support a conviction for
conspiracy to commit rape (Commonwealth v. Cook); conspiracy requires an agreement prior to
the crime

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O. Bilateral or Unilateral Conspiracies
1. Unilateral – to support a conspiracy only one needs to agree to the commission of the offense
(MPC)
2. Bilateral – traditional theory requiring actual agreement of at least two parties.

P. Importance of Defining Scope of Conspiracy

1. liability
2. Joint prosecution
3. Admissibility of hearsay
4. Double jeopardy
5. Overt act requirement
6. Statute of Limitations
7. Venue
8. Liability for substantive crimes.

Q. Conspiracies in Kilgore
1. First: Oldaker, Benton and Carden
2. Second: Kilgore Berry and Carden
3. Third: Kilgore, Price and Carden
4. This court said that conspiracy merged, but it was merely an evidentiary tool to prove the
murder.
5. If the object of the conspiracies were all the same, then why couldn’t all of the testimony about
the three conspiracies be used.
a. Court said b/c Oldecker didn’t know of Kilgore’s involvement
b. Whether his not knowing depends on the kind of cons.

R. Chain Conspiracy
1. The parties should know by the large ongoing nature of the conspiracy that the other members
exist
2. Common interest: success of one depends on the success of them all
3. All are members of one conspiracy.
4. Seen in large drug trafficking conspiracies: think chain of distribution.

S. Wheel Conspiracy
1. Central person (hub) agrees with individuals (spokes) who may or may not have knowledge of
the existence of the others
2. Knowledge connects the spokes (rims) into a single conspiracy
3. Knowledge or connection of financial interests create a rim
4. This rim thing is one way to limit the scope/reach of conspiracy law.

T. Cases
1. Kilgore: Statement of Olkraker was inadmissible in Kilgore’s trial b/c there was no common
conspiracy btw the two.
2. Bruno:
a. Big guys (importers and middlemen) were treated the same as the small guys (individual
dealers)
b. Leverage in getting the cooperation of the little guys (policy of trying to get the little guy to
turn on the big guy – can sometimes back fire when the prosecuter makes a deal with one of
the big guys.
3. Bravermen: where defendants planned several different violations, their agreement should have
been charged as one consp.

U. Wharton’s Rule

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 1. Rule: If it is impossible for a substantive offense to be committed without cooperative action, the
agreement to commit the offense is not an indictable conspiracy (if the actual crime requires two
people…it’s not conspiracy)
2. Examples
a. Bribery
b. Adultery, Incest and Bigamy
c. Dueling
d. Gambling
e. Buying and selling contraband
3. Justification: If you have a substantive offense that, by its very definition, requires two people,
you are actually double-counting for the same action.
4. Drug cases: In its traditional form, would not allow conspiracy conviction for drug transactions
where just two people are involved. For this reason, many jurisdictions have abolished it.
5. Wharton’s Rule will not apply where there is a legislative intent to the contrary
6. The MPC doesn’t recognize Wharton’s rule
7. Exception: if an offense requires two people, but a third or fourth person is involved, then
Wharton’s rule does not apply. Justification, is that when you add another, you increase the risk
to society so the scope is extended

V. The Gebardi Rule: a person that a particular law is intended to protect cannot be a party to a
conspiracy to violate that law.
1. A man and a woman conspired with each other to transport the woman across state lines to have
intercourse with the man.
2. Since the Mann Act is to protect women from being transported across state lines for
prostitution, debauchery etc., so the woman cannot be said to have conspired for her own
victimization.

W. Defenses to Conspiracy
1. Common Law: Abandonment not a defense but single conspirator can limit liability by
renouncing involvement and withdrawing from the conspiracy. No way under common law to
avoid conviction for the original conspiracy (because the act is complete when the
agreement is made)
2. Requirements may be strict
a. Communicate withdrawal to each co-conspirator
b. And successfully dissuade the others.
3. MPC §5.03(7)(c) – Withdrawal -
a. When one informs co-conspirators or notifies authorities that he is terminating his association
b. If he does this, he is not responsible for co-conspirators’ further acts
c. Does not provide a defense for the original agreement
4. MPC § 5.03(6) – Renunciation (A complete defense)
a. Is an affirmative defense if the defendant successfully thrwarts the success of the
conspiracy under circumstances manifesting a complete and voluntary renunciation of
his criminal purpose
b. This will avoid responsibility for the initial conspiracy as well

People v. Sconce:

CHAPTER 11: COMPLICITY: LIABILITY FOR THE CONDUCT OF OTHERS:

A. Doctrine of Complicity
1. Defines the circumstances in which one person (the accessory) becomes liable for the crime of
another (the principal)
a. Assisted crimes

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 b. Crimes committed for another.
2. Most of the time, but not always, an accessory is also a conspirator

B. Bases of Liablity: Actus Reus

1. Physical aid: getting the gun, driving the getaway car, etc.
2. Psychological aid: encouragement, reinforcement. Perhaps presence and very little else will
qualify as encouragement
3. An omission: Failure to prevent a crime may constitute assistance, if the omitter has a duty to
intervene.

C. Features of Accomplice Liability

1. Accomplice liability is a form of group criminality
2. Accomplice liability is derivative
3. Accomplice liability is not based on causation
4. Accomplice liability does not violate the notion that criminal guilt is personal.

D. Common Law Definitions

1. P-1: personally commits crime or uses innocent agent
2. Innocent agent: commits criminal act but lacks capacity or mens rea and is manipulated into
committing the crime.
3. P-2: intentionally helps/encourages P-1 to commit crime and is present or constructively
present, e.g. a lookout (State v. Hoselton)
4. ABTF: intentionally helps P-1 beforehand but is not present
5. AATF: Not part of the planning or commission but intentionally renders aid to P-1 after the crime.

E. Innocent Agent Doctrine

1. A secondary party is a P-1 if his acts cause a crime to be committed through an innocent agent
2. Bailey v. Commonwealth
a. Defendant made visually impaired victim believe he (defendant) was on his way to do the
victim was on his front porch with a weapon. Police had no choice but to kill victim
b. Defendant was a P-1 and the police were innocent agent

F. Common Law Compared with MPC

1. Under MPC, Principals include common law’s P-1, P-2 and ABTF
2. Under MPC the common law’s AATF is covered in a separate section prohibiting hindering
apprehension or prosecution (§242.3)

G. MPC §2.06
1. One is guilty of an offense “committed by his own conduct” and those “committed by …another
for which he is legally accountable”
2. Legally accountable
a. When actor uses innocent agent
b. When actor is an accomplice of another
3. Accomplice
a. When actor solicits a crime
b. When actor “aids or agrees or attempts to aid” another in crime

H. Early Common Law Procedures re: Accomplices

1. Venue: where activity to place
2. Pleadings and proof
a. Confusing P-1 and P-2, vice versa, was no impediment to conviction
b. But if P-1 or P-2 were confused w/accessory, variance between pleading and proof would
prevent conviction
3. Requirement of guilty principal

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 a. ABTF and P-1 could be tried together but ABTF could not be convicted unless P-1 was first
convicted
b. P-1 and P-2, order of conviction was not important.

I. MPC Procedural Differences

1. Venue: accomplice may be prosecuted where crime took place or where he assisted
2. Guilty principal: MPC dispenses with common law requirement that principal be convicted before
an accomplice can.

J. Contemporary Common Law Procedures re: Accomplices

1. Most jurisdictions use MPC model re: classification of parties
2. Procedural consequences of classifications have been abolished
3. AATF’s are treated less harshly than principals

K. Liability when primary party is acquitted

1. Justification: implies no crime has been committed, so there is no wrongdoing by evidence
2. Excuse: Acknowledges that conduct was wrong but the principal was excused b/c of reasons
personal to him. Accomplice may still be convicted.

L. Mens Rea for Complicity

1. Dual intents
a. Intent to assist primary actor
b. Intent that primary actor commit the offense
2. Intent to assist
a. CL & MPC: must act with at least same mens rea as crime being aided.

M. Is purpose required or is knowledge enough

1. With knowledge most court allow the state to establish purpose, i.e., intent to aid by
a. Direct evidence
b. Circumstantial evidences examples
 When seller acquires stake in enterprise
 When no legitimate use for goods or services exists
 When volume is disproportionate to legitimate demand.
 When the nature of the crime is aggravated (Lauria)

N. Intent & Attendant Circumstances

1. Intent that another commit offense under attendant circumstances
a. CL
 Conduct: purpose or intent to encourage or assist in the conduct element of the offense
 Result:
 Strict liability: most courts allow accomplice liability
b. MPC: One must act with the purpose of promoting or facilitating the commission of offense

O. Foreseeable Consequences
1. If the defendant intend to promote and primacy crime and the secondary crime was a
foreseeable consequence, he can be convicted of both crimes
2. AKA, natural and probable consequences doctrine

P. Accomplice vs. Conspirator

1. Conspirators agree w/ others to commit a crime
2. Accomplice
a. Need not have agreed or conspired
b. But may have assisted the crime even w/o agreement
3. Conspirator faces liability where a crime is contemplated but not completed crime or attempt

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 4. Most of the time an accomplice will be a conspirator

Q. Actus Reus
1. Common Law
a. Actual Assistance (Physical and Psychological)
 Holding victim while P hits him
 Holding the ladder steady as P climbs into the window
 Yelling, “Kick him again – he’s moving!”
b. Most court will find any aid is sufficient unless sit is completely ineffectual

2. Omission
a. Common Law – actus reus can be satisfied by an omission by one w/ a legal duty to act. E.g.,
police officer who stands and watched P attack and rape V has satisfied the actus reus
requirement.
b. MPC: Same approach. A person who has a legal duty to prevent the commission of an offense
is responsible for that offense if he fails to make proper effort to prevent it.
3. How much Aid?
a. State v. Vailancourt:
 Conduct: Standing and talking to someone who’s trying to break into a house. No liability.
 Held: Accomplice liability requires an actor to have aided the primary actor by some form
of participation on the part of the actor
° Knowledge and mere presence do not constitute sufficient affirmative
 Dissent: presence is encouragement
b. State v. Helmenstein
 Per statute a conviction may not rest on the testimony of an accomplice unless there is
corroboration by other evidence that connects defendant with the crime.
 Also, one may be considered an accomplice by providing moral support, i.e., asking P to
bring home bananas from the store he planned to burglarize.
4. Corroboration
a. But compare Wilcox v. Jeffery
 Principal (Hawkins) committed an offense by playing at a concert in violation of English
immigration
 Wilcox was aider and abettor because he was there 1) to hear Hawkins and Wilcox’s
presence and payment was encouragement; and 2) hoping to copy for his magazine
 Once it is determined that A assisted P, even a trivial amount of help constitutes actus
reus.
5. Crime Required
a. People v. Genoa
 Undercover officer received financing from defendant. Officer would procure and
distribute drugs and repay front money and profit to defendant
 Defendant was not guilty of attempted possession with intent to distribute narcotic b/c no
drugs were purchased by officer
 If P’s conduct does not proceed sufficiently far to constitute an offense then A is guilty of
no offense as an accomplice.
 MPC resolution.

R. MPC – What constitutes aid?

1. Broader
2. Any effort, ineffective or unknown to the principal, satisfies the actus reus requirement
3. Even ineffective efforts can be assistance, if the act strongly corroborates his criminal purpose.
4. State v. Helmenstein
a. Per statute a conviction may not rest on the testimony of an accomplice unless there is
corroboration by other evidence that connects the defendant with the crime

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 b. Also, one may be considered an accomplice by providing moral support, i.e. asking P to bring
home bananas from the store that he planned to burglarize.

S. Direct vs. Accomplice Liability

1. Bailey v. Commonwealth
a. Bailey argued he wasn’t present and so could not be guilty as a principal
b. One who effects a crime through and innocent or unwitting agent is a principal in the first
degree

T. Principal Acquitted/Not prosecuted

1. US v. Lopez
a. Boyfriend helps prisoner escape because there are threats on her life.
b. Court said it was a justification
c. Acquittal of principal will not bar conviction of the accomplice if the acquittal was based on
justification.
d. In the absence of wrongdoing by a principal there is no crime to impute to an accomplice.

U. Principal Convicted
1. People v. McCoy
a. P and A convicted of first degree murder
b. P’s conviction reversed: error in jury instruction
c. Held: the reduction of the principal’s offense does not necessitates the reduction of the
accomplice’s
d. Sometimes an accomplice can be convicted of a higher degree of crime than the perpetrator

V. Defenses of Abandonment, Renunciation, and/or Withdrawal in Accomplice Liability

1. Common law: Abandonment and withdrawal are not defenses to accomplice liability in most
jurisdictions, but some provide by statute that a voluntary and complete renunciation together
with substantial efforts to prevent the crime is a defense.
2. MPC §2.06 recognizes abandonment as a defense if the defendant terminates his complicity prior
to the commission of the offense and either:
a. Wholly deprives it of effectiveness; or
b. Gives timely warning to law enforcement or otherwise makes proper efforts to prevent a
crime.

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