Crim Final Practice

Transition words: alternatively, in the alternative, nevertheless, however, nonetheless,
regardless, yet, notwithstanding, conversely
Tutorial 3 – Question 1
State v. Keating
Actus Reus
Actus reus requires a positive act. He went to his country home and “built a fire” (rather
than spontaneously combust). He may have known a spark could result. Once the spark hit, he
“watched the carpet burn,” left the house and ran to his car. By quickly leaving the house after
realizing it was burning, he making positive act towards insurance fraud by arson.
There is also an omission. Though there is no general duty to help, Keating likely has a
contract duty with the insurance company to stop the spark. Insurance likely covers accidents
and assumes the owner would avoid the accident if he could easily do so. He violated this duty
when he noticed the fire and left instead without calling for help.
Alternatively, Keating himself did not start the fire. Sparks naturally occur where there is
fire. Keating would defend that he watched the carpet burn for a couple minutes because he was
in a daze. He didn’t violate his duty because he saw fire and instinctively ran away. He was in a
daze from financial troubles and thus was not thinking clearly.
Mens Rea – Insurance Fraud/Arson
Keating had the purpose to commit insurance fraud by arson. His recent financial
reverses give him motive. The spark created an opportunity which “occurred to him.” He
watched the fire burn and must have known that fire would eventually burn down the house. His
failure to put out the fire and failure to call for help corroborate evidence of intent to burn the
house down.
On the other hand, the idea of insurance fraud occurred after the fire had been burning for
a few minutes. By that time it could have been too late to save the fire. He “immediately” left
without grabbing anything important and argues he was simply saving his life. The financial
reverses had put him in a daze. In addition, the spark created a state of emergency which may
have clouded his judgment.
Mens Rea – Homicide
There is no premeditation for murder 1. The thought “occurred” to him after the fire
started.
There is no heat of passion for voluntary manslaughter. Ms. Jones did not provoke Mr.
Keating and is unlikely related to his financial reverses.
For murder 2, there is no intent to kill or inflict grave bodily harm. Ms. Jones is again
unlikely related to the financial woes and Keating did not intend to hurt her.
Gross reckless (for murder 2) requires a conscious disregard of a substantial and
unjustifiable risk and the magnitude of harm to outweigh the social utility. Keating conscious
disregarded his risk by watching the fire burn for a couple minutes. He knew it was dangerous
since he immediately ran away. Danger invites rescue and neighbors even at a distance may have
seen the smoke from the fire and come to rescue. Since he owned the home he likely knew he
had neighbors. The neighbors might know it would take a long time for the fire department to
come since it is 20 miles from the city and thus come to offer help.
Alternatively, Keating would argue he didn’t consciously disregard the harm. He was
“reflecting” and thus in a daze. His mind was clouded by the financial troubles and seeing the
fire so he lacked mental capacity to consciously disregard the risk. In addition, the house was in
the country away from civilization, and thus houses are often more spread out. The closest
neighbor may be a good distance away. There was also a lake nearby and thus the fire would not
spread to harm others. He didn’t call for help, so fire fights wouldn’t be expected to come and
risk their lives. Thus, even if there was a small risk, it was not a substantial risk that he
disregarded.
The state would assert the social utility was less than the magnitude of harm to be
considered gross. The probability of harm was great. Danger invites rescue. Firefighters or even
someone would have come eventually. The magnitude of harm is great. Fires can lead to burns
that are fatal. There is no social utility in starting a fire, the action only benefits Keating. The cost
of the alternative would be to sell the house may be worth $3000.
Nevertheless, Keaton would argue the probability of harm to others was low considering
the house was by a late and 20 miles away from the city. The cost of the alternative of selling his
house may have been low if the market value for the house was bad.
If he consciously disregarded the risk and his action was gross, he is liable for murder 2
under gross recklessness. If he consciously disregarded the risk and his action is not gross, he
may be liable for involuntary manslaughter.
Involuntary manslaughter can also be proved if a reasonable person had known the risk
and it was gross (see above). A reasonable person would know danger invites rescue and know
that fire can kill those who come to help. Common sense dictates that fire is extremely dangerous
no matter where it is.
Yet Keating can argue again that the location of his country home (see discussion, supra)
would have led a reasonable person to not know the risk. This however is a weak argument.
Common sense (from the jury) would be that everyone knows fire is dangerous.
Felony Murder – Insurance Fraud
Insurance Fraud (assuming it is a felony) is not part of BARKRM, and thus cannot
receive murder 1 under felony murder. It would fall under murder 2.
However, it would be limited under the inherently dangerous doctrine. In the abstract,
insurance fraud is not dangerous. There are many ways to defraud your insurance company
without killing anyone. Often more paperwork deceit is involved that may be harmless. As
committed, his act is certainly dangerous simply because someone died when he committed
insurance fraud.
Insurance fraud does not merge since it has a separate purpose from homicide. The
purpose is to simply obtain money through defrauding the insurance company.
Keating would also assert that the death is not in furtherance of the felony. Even though
Keating left, the fire was still burning. The death certainly occurred during the fire, which was
necessary for the insurance fraud, but the death of Ms. Jones was not needed. Regardless, Ms.
Jones death may have been necessary. If Ms. Jones would have not tripped over the chair and
died, she could have saved the house. Thus, her death was in furtherance of the felony since if
she lived she could have prevented it.
Felony Murder – Arson
Arson is part of BARKRM, and thus Keating can receive murder 1. Arson is also
considered an inherently dangerous crime in the abstract, and as committed because a death
occurred during this instance.
Ms. Jones death is also likely not in furtherance of the crime (see discussion, supra).
Arson also does not merge since it is an independent felony with a separate purpose to burn the
house down.
Causation
But for Keating’s going to his country home, building a fireplace, failing to put out the
fire and running away without calling for help, the fire would not have burned and Ms. Jones
would not have died. Actual cause is established.
Proximate cause requires a legally sufficient direct cause. It is certainly foreseeable that
danger invites rescue. The burning building is covered in smoke and making it difficult to see. It
is foreseeable that Ms. Jones would have difficulty seeing and may trip and hurt herself. The
smoke would make breathing difficult and thus make her unconscious. The fire is foreseeable in
that it will cause burns which may lead to death.
Alternatively, it may not be foreseeable that Ms. Jones would come at all. Ms. Jones, as a
neighbor, could have been a good distance away. In addition, it is not foreseeable that normal
people would run into a “burning house” to try and put out the fire without any equipment. It is
foreseeable Ms. Jones would have called the fire department, but not run in herself to put out the
fire.
Proximate cause also looks at intervening acts. Ms. Jones’s intervening act of dashing
into the burning house may be foreseeable (see discussion, supra). In addition, courts would
want to blame Keating, rather than the innocent victim who tried to help.
On balance, Keating is liable for insurance fraud, arson, and murder 2.

Question 2
State v. Fool
Actus Reus
Actus reus requires a positive act. Fool went to the desert and drove his dune buggy. He
attempted as many jumps as he can. His brain was engaged and he actively controlled the dune
buggy. On the other hand, Fool “lost control” as he landed on the Simpsons and asserts there was
no positive act. However, if he was in the air when he lost control, he likely had no control
anyways since turning the wheels are useless while in midair.
Regarding omissions, there is no general duty to help. However, Fool created a peril.
Thus, his positive act may be stretched as soon as he landed and splashed land into Jill. In
addition, he has a duty to rescue. There are no indications of his actions after the dune buggy
landed, but he certainly could have called for help or offered his car as a ride.
Mens Rea – Homicide (Jack and Jill)
There is no premeditation for murder 1. Fool and the Simpsons were likely strangers (he
randomly ran into them in the desert) and thus Fool cannot have premeditated Jill and Jack’s
murder.
There is no heat of passion for voluntary manslaughter. Fool and the Simpsons are likely
strangers and there is no indication of provocation of any kind. They had not likely met each
other before. In addition Fool did not see the Simpsons before the last jump.
For murder 2, there is no intent to kill or inflict grave bodily harm. A random encounter
in the desert precludes intent.
unjustifiable risk and the magnitude of harm to outweigh the social utility. Fool conscious
disregarded the risk by driving fast and crazy. The faster and crazier one drives, the more likely
an accident can occur. In addition, jumps are dangerous. You cannot see the other side when you
jump. By attempting “as many jumps as he can,” Fool likely knew he couldn’t see where he
would land after doing many jumps. A good amount of speed is also required to overtake a jump.
Increased speed likely increases the risk. In addition, there are signs along the highway that
prohibit dune bugging and that it is a felony. The state would not make something a felony unless
it was dangerous. Since he was in the deep desert, the nearest help would likely take a long time
to reach. Lastly, it was Labor Day weekend, the extra day off increases the chance that families
may be outdoor picnicking.
Alternatively, Fool may argue the jumps he was attempting were not that high. Though he
loves driving fast and crazy, there is no indication he was driving fast and crazy that day.
Moreover, while there are signs along the freeway, there is no indication he saw any of them. He
might not even have driven on the freeway. He was driving his dune buggy 20 miles away from
the main freeway and thus likely didn’t see the signs. He was also driving deep in the desert, and
so unlikely that people would come this far in to see the desert. In addition, the desert is
completed isolated and away from population. Thus, he didn’t disregard any risk because the
desert is usually “isolated.” Furthermore, even if it was Labor Day, people don’t picnic or hang
out ever in the desert. The desert is a dry place and perhaps terrible place. Since it is unlikely
there are people around, he did not disregard a substantial and unjustifiable risk.
The state would assert the social utility was less than the magnitude of harm to be
considered gross. The magnitude of harm is great. His fast driving could easily run into someone
and kill them. There is also no social utility. His behavior only benefits him. Society does not
benefit from one person making tracks in the desert.
On the other hand, Fool would assert the opposite. The cost of alternatives was high. The
nearest dune buggy driving course was 2 hours away. It would cost him time and money (gas is
likely expensive) to get there. In addition, driving on a specific dune buggy course would cost
money as well. He would also argue the probably of harm was low. There’s likely no one in the
desert this far in (see above) and thus would unlikely harm anyone.
and it was gross (see above). The state would argue a reasonable person would have realized
dune buggy is a dangerous activity since it is only allowed in special state authorized driving
areas. A reasonable person would have driven along the highway and noticed the signs and the
risk even if he didn’t. A reasonable person would have known attempting jumps and not being
able to see what’s on the other side of the hill would lead to a risk of hitting someone, especially
with a greater chance families are out on a long weekend.
Alternatively, Fool would argue a reasonable person in the deep desert, no matter what
they’re driving, would not realize a chance of hitting anyone since there is likely no chance
anyone would be out here (alive).
Under the dangerous instrumentality doctrine, Fool may be guilty of involuntary
manslaughter if he was merely negligent without being gross. The dune buggy is similar to any
other motorized vehicle and considered a dangerous instrumentality since it can likely achieve
high speeds and cause serious injury. Thus, Fool is likely guilty since he was negligent, as a
reasonable person should have known the risk (does not matter if it is gross negligence).
Felony Murder
Dune bugging is not part of BARKRM, and thus cannot merit murder 1 under felony
murder. Since it is prohibited by law in that area and is a felony, Fool can receive murder 2 under
felony murder.
However, the felony murder may be limited under the inherently dangerous doctrine. In
the abstract, dune buggy is likely not inherently dangerous. You can easily drive through the
open desert without hitting anyone or anything at all. There is usually no civilization of any sort
in the desert. As committed, dune buggy is inherently dangerous since Fool killed someone with
his dune buggy.
Fool may also assert that hurting the Simpsons was not in furtherance of the felony. The
felony was simply to drive in the desert. By crashing into the Simpsons they stopped him from
driving in the desert and thus being able to commit the felony. However, Fool’s act was caused
by himself from committing the felony, and thus this limitation will likely not apply.
Causation
Causation requires actual cause and proximate cause. But for Fool’s dune bugging Jack
would not have died from a dune buggy landing on him. This direct contact between the dune
buggy’s wheels (or other parts) and his stomach also establishes proximate cause.
Fool may argue that even if he did not splash sand down Jill’s throat, her parents car was
still broken down. The car was broken from the heat already sometime before. They still would
have had to flag a car down and Hans may still have ended up hitting Jill. However, this is
unlikely. But for Fool’s splashing of the sand, the Simpsons would have stayed longer and
picnicked for a longer time. They would have discovered their broken down car at a later time
and flagged down help at a later time. Hans may have drifted off the road still, but Jill would not
have been there.
Regarding proximate cause, it is certainly foreseeable that sand would end up in Jill’s
throat. People tend to eat during picnics and have to open their mouth to do so. A sudden dune
buggy may come in a split instant and not be enough time for her to close her mouth. It is also
foreseeable that the car would be broken down due the heat. Desert by definition are hot, and
heat expands objects and causes them to deform and break down. This dryness makes running
out of water foreseeable since the family like uses a lot of water to hydrate themselves. It is also
foreseeable that help would be far away, and that the hospital is 45 miles away since they are in
the desert.
On the other hand, Fool asserts it is not foreseeable there would be people there in the
first place, much less picnicking. People generally picnic in the park, not in the desert since it is
seen as a desolate place. Moreover, it is not foreseeable that a truck will drift off the road and hit
Jill, who is likely with her family. The family is likely carrying her and can move her away from
the truck. Plus putting sand in one’s throat usually results in one chocking to death, not dying
from convulsions (though usually victim is taken as one finds them).
Intervening acts look at both foreseeability (see above) and control and policy. Fool
certainly had control over his dune buggy, though he may argue he “lost control” once in the air.
The courts would certainly want to blame Fool, since he was the wrongdoer who committed the
felony that led to the deaths.
Fool would assert that Jill’s death as a result of Hans was a superseding intervening act.
This was an additional act by another unrelated additional perpetrator which would likely break
the link in the chain. Hans was likely a random driver on the road, unrelated to both Jill and Fool.
His act was extraordinary and courts would likely not want to blame Fool since Jill was still
likely alive. She had difficulty breathing and swallowing but would have made it to the hospital
still.
On balance, Fool is likely guilty for murder 2 of Jack but not Jill, as well as the felony of
dune buggying.
State v. Hans
Actus Reus
Actus reus requires a positive act. Hans was looking at a map. He likely consciously
needed to look at it because it was lost, and likely picked up the map with his hands and focused
his eyes on it. Nevertheless, he may argue the car drifted on its own since he was focusing on the
map.
Hans did not fail his duty of omission since after he hit Jill; he created the peril and thus
took reasonable care to drive the family to the nearest hospital.
Mens Rea
There is no premeditation for murder 1. There is no heat of passion for voluntary

manslaughter. Hans and the Simpsons are likely strangers since he is likely a random driver on
the road. It is very unlikely that you randomly meet your enemy (or anyone you know) in the
desert.
For murder 2, there is no intent to kill or inflict grave bodily harm. A random encounter
in the desert precludes intent.
unjustifiable risk and the magnitude of harm to outweigh the social utility. Hans disregarded his
risk when he looked at the map. He knew he was still driving and thus not looking at the road.
On the other hand, Hans argues he was looking at the map and the road. It is possible to look at
both at the same time and thus he was not disregarding the risk, especially if he made a quick
short glance at the map. Though, “looking at the map” suggests it was more than a mere glance.
The state would argue the social utility was less than the magnitude of harm. The
magnitude of harm was great. He was driving a truck, which has greater weight than any normal
car. A crash would carry more momentum and thus cause greater injury. In addition, looking at
the map does not benefit society at all. He could have stopped the truck and looked at the map as
an alternative. In addition, there aren’t even many roads through the desert. Roads in the desert
are not complicated city pathways and thus looking at a map while driving was likely
unnecessary.
However, Hans asserts that the probability of harm was low. He was in the desert and
there are generally few people around. The cost of alternative may have been high. There could
have been a huge intersection around and he did not want to block the road with his truck.
and it was gross (see above). A reasonable person should have known that being distracting by
maps or anything while driving could lead to accidents. On the other hand, Hans asserts a
reasonable person would not have known a risk simply due to the fact he’s driving in the desert.
There are generally no cars, no people, no street lights or buildings to hit.
Under the dangerous instrumentality doctrine, Hans may be guilty of involuntary
manslaughter if he was merely negligent without being gross. Cars are generally considered
dangerous instruments, since they are like other motorized vehicles that can lead to death when
misused. Thus, Hans is likely guilty of involuntary manslaughter automatically since a
reasonable person would have known the risk from looking at the map.
Assuming looking at a map is not a misdemeanor, the State cannot use the unlawful act
doctrine (or felony murder).
Causation
Causation requires actual cause and proximate cause. But for Hans looking at the map,
the car likely would not have drifted (unless the engine malfunctioned), Hans likely could have
turned the car to avoid the accident.
Proximate cause looks at foreseeability. It is certainly foreseeable that people on the side
of a desert road might need assistance, and might already be in a bad condition (though one takes
their victims as they find them if Jill’s precondition mattered). Jill’s condition would not break
the link. In the alternative, Hans would argue it is not foreseeable there would be people around
since it is the desert.
Hans certainly had control of the truck unless it malfunctioned and the court would likely
want to blame Hans. Hans looked at a map while driving and that led to the accident.
On balance, Hans is guilty of involuntary manslaughter.

Midterm Practice Question
STATE v. JOHN (J)
Homicide of Barak (B)
Actus Reus
Actus Reus requires a positive act that is of one’s own volition. J “beat” B over the head
with the sign. This was not any of the involuntary acts under the MPC of unconciousness,
hypnosis, reflex, nor w/o conscious thought.
Regarding omissions, there is no general duty to help. After J started beating and
inflicting injury, he created a peril in B. This can be used to extend the actus reus. In addition, he
has a duty to help B since he is peril but failed to do so since he continued beating B.
Thus, J had the actus reus.
Mens Rea – Murder 1
Murder 1 requires premeditation or a cool deliberate thought in addition to malice.

Under the Anderson method, purpose and preconceived design is required. The court
looks at planning, motive and manner. There is no evidence of planning this murder. The 50
blows suggest it was not a preplanned event. This manner suggests a lack of planning since it is a
difficult way to kill sometime. It takes a while and likely takes a lot of effort. Even though he had
hoped B would just disappear, it is not evident that he planned to beat B today. Grabbing a
nearby sign post as a murder weapon was more likely an instinct reaction since he did not bring a
deadly weapon. His motive is certaintly established, since B had kept humiliating him over the
last month. In addition, B humiliated him that day and kicked him as well, giving reasons for him
to seek revenge.
Under the Carrol method, no time is necessary for premeditation. Purpose is established
by motive (see Anderson, supra). J may defend that he merely had the intend to hurt B, not kill
(see murder 2, infra).
There is no cool deliberate thought. J was “fuming” and “emotionally…battered.” The
grabbing the sign post was retaliation to humiliation. Thus, timing is irrelevant since J did not
have cool thought at the time due to his anger (see voluntary manslaughter – actual heat of
passion, infra).
Mens Rea – Voluntary Manslaughter
VM requires 1) actual heat of passion, 2) legally adequate provocation, and 3) lack of

cooling time.
Actual heat of passion is established by J being “fuming” and “emotionally…battered.” B
had humiliated him and called him “an old fogey.” Publicly calling people names likely angers
them. In addition, kicking them in injured spots would provoke people as well. Delivering 50
blows is unusually excessive and indicates he was emotionally charged in hurting B. The words
“die, traitor, die!!” suggests anger as well. One who kills in anger usually yells (assuming the
exclamation marks suggest that). People also generally have strong animosity towards traitors.
Lastly, he was replaying last month’s events in his head as he beat B.
Legally adequate provocation under the categorical approach would suffice if the kick
constitutes extreme assault. J would assert the kick was extreme since he had “severely” injured
it during the war and thus causes extreme pain. B would defend that it was just a simple kick,
and no indication that it was made to be intentional.
Under an objective reasonable person standard, J’s physical aspects as an “old fogey”
would be taken into account. A reasonable person would not kill someone even if humiliated. A
reasonable person would hot kill someone even if kicked in a vulnerable spot. Some minority
courts would also consider his emotional standard under a reasonable person.
Under the MPC, J can defend that he suffered extreme emotional distress. This defense is
allowed if he had 1) a reasonable reason 2) and he was subjectively under extreme emotional
distress. J argues that the humiliation and kicking as well as weeks of torment by B put him
under extreme emotional distress. This was a reasonable reason to retaliate since people tend to
dislike others who put them in pain.
On the other hand, B would assert it was not a reasonable person. They were engaging in
a debate and it is certainly reasonable that he would attack the opponent. Assuming the two are in
some campaign of some sort, candidates should be prepared for public humiliation.
There must also be inadequate cooling time. J asserts that the event happened on the same
day and he was continually chasing B. B defends there was cooling time since B ran away for
some time and it took awhile for J to get “caught up.” However, J would argue his anger had
been longer smoldering during the entire chase and that he never cooled down. He was still
“fuming” after he caught up with B and “emotionally…battered” before he started chasing. Thus,
the anger never died.
Mens Rea – Murder 2
Murder 2 requires only malice and serves as a dumping ground when there is not enough
premeditation (for murder 1) or heat of passion (for voluntary manslaughter). Murder 2 requires
the intent to kill, intent to cause grave bodily harm, or gross recklessness.
The state would argue J had the intent to kill. He yelled the words “die” and had the
motive for it (see murder 1, supra). J targeted the head, a vulnerable area. When you want to kill
someone, you would aim for the head. In addition, the head is typically small compared the body,
suggesting he targeted the head rather than merely targeting his body to inflict injury. On the
other hand, he was beating B, and asserts that he merely wanted to severely injure B with a sign.
The sign is a blunt instrument, and is generally not considered a dangerous killing weapon. This
qualifies as intent to kill. The intent to kill automatically satisfies intent to cause grave bodily
harm.
Gross recklessness requires a conscious disregard of a substantial and unjustifiable risk
and the conduct to be gross (social utility outweigh magnitude of harm). J had the necessary
intent and killing someone is considered gross. Killing someone has a great magnitude of harm
and little social utility.
Mens Rea – Involuntary manslaughter (IM)

IM requires mere recklessness and gross negligence. Recklessness requires a conscious
disregard of a substantial and unjustifiable risk. J had the intent to kill (see above) and thus
disregarded this risk. Gross negligence requires the social utility to outweigh the harm and that
the defendant should have known the risk. J had the intent (see above) and killing constitutes
gross conduct. Also, the sign post is not considered a dangerous instrument and thus would
unlikely fall under the dangerous instrumentality doctrine.
On balance, J is guilty of voluntary manslaughter.
Causation
Causation requires actual or but for cause and proximate or legal cause. J’s act directly
led to B’s death. But for J’s beating B, B would not have died. The death was foreseeable since
50 blows to the head likely smashes one’s brain to bits. There were also no intervening acts.
Thus, J’s acts caused B’s death.
On balance, J is liable to B for homicide.
STATE v. JOE
Homicide of Sara (S)
Actus Reus
Actus Reus requires a positive act that is of one’s own volition. Joe “pushed” Sara. The
fact that Sara fell over suggest that he pushed her hard enough that it was an gentle brush or an
accident. This does not fall under any of the involuntary acts under the MPC. Joe was not
unconscious, under hypnosis, w/o his own will, or having a reflex.
Regarding omission, there is no general duty to help. However, Joe created a peril and
thus has a duty to help. There is no indication he tried to help Sara after she fell. Joe may defend
that he didn’t know she fell down the stairs and didn’t see her, though no indication is given
whether he had knowledge of her injury.
Mens Reus (MR) – Murder 1
Murder 1 requires premeditation. There is no indication of premeditation. Joe unlikely

knew who he was pushing nor would plan that B would suddenly appear. He may have intended
the push but unlikely intended death.
MR – VM
VM requires 1) actual heat of passion, 2) legally adequate provocation, and 3) lack of

cooling time. There is no actual heat of passion. Joe likely did not know who he was pushing
since the hallway was crowded and he pushed randomly to make space for B to get through.
MR – Murder 2
Murder 2 requires only malice and serves as a dumping ground when there is not enough
premeditation (for murder 1) or heat of passion (for voluntary manslaughter). Murder 2 requires
the intent to kill, intent to cause grave bodily harm, or gross recklessness.
Joe likely had no intent to kill or cause grave bodily harm. He was likely pushing
randomly and did not intend to target anyone or hurt anyone. He likely intended the push, but
that does not constitute grave bodily harm. Pushing generally does not result in serious injury.
Most people who are pushed may move back but usually do not fall.
and the conduct to be gross (social utility outweigh magnitude of harm). The state argues that Joe
conscious disregarded the risk when he pushed someone in a crowded hallway. It is likely that
Joe knew there were stairs nearby and that a push into the crowd could cause someone to fall
down those stairs. Thus the risk was not justifiable. In addition, he likely could see the stairs
since Sara must have been standing right next to the stairs to fall into it.
On the other hand, Joe defends that he didn’t realize a risk. Pushing a crowd would likely
cause them to sway a little. Thus, pushing into a crowd is not a substantial and unjustifiable risk
since it wouldn’t cause much danger. Even if S fell over the crowd would have cushioned her
fall. He argues he didn’t realize S was by the stairs since he was watching B and trying to help
him.
On balance, Joe likely disregarded the risk but it was not substantial or unjustifiable.
Gross conduct requires the magnitude of harm to outweigh the social utility. The state
argues that the probability of harm was great. There were a large number of people there and
such a strong push would lead someone to be hurt. Also there is no benefit to pushing a large
crowd of people just for B to run away and there could have been other options to protect B.
Alternatively, Joe defends that the type of harm was not that great. He merely pushed
people in a crowd, and that is generally not a deadly act. In addition, there might be benefit to
society to protecting the life of B. B is a debater at a university, suggesting he has respect and
prestige in society. In addition, the alternative would be to let J catch B, which may result J
killing B. This is not a viable alternative
On balance the social utility outweighs the magnitude of harm and the conduct is not
gross. Thus, Joe is not liable for gross reckless and murder 2.
MR – IM
IM requires mere recklessness and gross negligence. Recklessness requires a conscious

disregard of a substantial and unjustifiable risk (see above).
Gross negligence requires the conduct to be gross (see above) and that a reasonable
person should have known the risk. The state would argue that a reasonable person should have
known S was standing next to stairs. A reasonable person would not push others. A reasonable
person would know pushing generally results in some form of harm.
However, since the conduct is not gross nor did he disregard a risk, he is not liable for
IM.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for Joe’s push, S
would not have ended at the bottom of the stairs and died.
Proximate cause looks at foreseeability and intervening acts. It is certaintly foreseeable
that one would suffer serious injury and die from falling down the stairs. Thus the result is
foreseeable since S was like conscious, but since she just fell, wouldn’t be able to move too
quickly. She was still alive but could have been injured and thus put in a vulnerable position.
On the other hand, Joe would defend the manner of death was not foreseeable. He created
the risk of injury or death from falling down the stairs but that was not the risk that led to her
death.
Joe would argue that the moose was an intervening act. It is not foreseeable to see such
an unusual animal break lose. This was a debate and large animals are not brough in generally to
amuse the audience. In addition, Joe had no control over the moose. However, the state would
argue that policy would dictate that we blame Joe since he committed an act of injury.
Joe would also argue that the ambulance driver was a superseding act. General
negligence from medical treatment does not break the link of chain unless their acts were grossly
negligent or intentional. The ambulance driver had intent to not help S. He “started to laugh” and
said “she deserved it.” This indicates an intentional refusal to aid S and constitutes a superseding
act.
Thus, Joe did not cause S’s death due to a superseding act and thus not liable for her
death.
Black Letter Law Practice
1. Actus Reus
a. Voluntary Act
i. Involuntary Act
b. Omission
2. Mens Reus
a. Purpose
b. Knowledge
i. Ostrich defense
c. Reckless
d. Negligent
e. Strict Liability
3. Mistake of Fact
4. Mistake of Law
a. Exceptions
5. Homicide
a. Murder 1
i. Carrol
ii. Anderson
b. Murder 2
c. Voluntary Manslaughter
d. Involuntary Manslaughter
e. Felony Murder
f. Misdemeanor Manslaughter
g. Dangerous Instrumentality
6. Causation
a. Actual Cause
b. Proximate Cause
7. Attempt
a. Mens Reus
b. Actus Reus
c. Abandonment
d. Impossibility
8. Midterm Practice 2
STATE v. JOHN (J)
Death of Barak (B)
Actus Reus
Actus reus requires a positive act of one’s volition. The beating methodically establishes
the act. Under the MPC, it is an act since this beating is not a spasm, unconsciousness, hypnosis,
or not of J’s volition.
Regarding omissions, there is no general duty to help. However, J created a peril himself
by beating B slowly. He failed to help and continued hitting him instead.
Thus, there is an act.
Mens Reus (MR) – Homicide
Murder 1
Murder 1 requires premeditation and malice.

Under the Carroll method purpose is enough and no time is too short. J had the desire
since he “methodically” beat Barak. He targeted the sign at his head, a vulnerable spot that when
injured results in death. The head is generally small, so he must have targeted it and 50 blows
results in death.
Under the Anderson method, the court requires purpose (see above) + preconceived
design. Preconceived design looks at manner, motive, and planning. The manner is using the
sign. The 50 blows suggest it was not preconceived. The motive is that they are political enemies
and B had humiliated him so J seeks revenge. There is little evidence of planning. The sign was
randomly grabbed and not the usual deadly weapon one brings when planning.
Premeditation requires a cool, deliberate thought. J, however, was fuming and
emotionally battered. Alternatively, the “slow and methodical” beating may be argued to have
been argued to have been cool and deliberate. The state would argue he had a cool moment, even
for a second (using the Carroll view) when making the first blow, and that first blow killed him.
In addition, it was a slow and methodical attack, showing the a cool deliberate moment of
thought had formed. On balance though, J lacks premeditation for murder 1.
Murder 2
Murder 2 requires malice and serves as a dumping ground for everything without
premeditation or heat of passion. Malice looks at the intent to kill or cause grievous bodily harm,
or gross recklessness. J had the intent to kill. He said “die.” Alternatively J may defend that he
said it because he was angry and the words did not suggest he wanted to kill. Even still, an intent
to cause grave bodily harm suffices. Targeting one’s head 50 times easily constitutes grave
bodily harm. This intent automatically is enough for gross recklessness as well.
Thus, J is liable for murder 2.
Voluntary Manslaughter (VM)
Voluntary manslaughter requires 1) actual heat of passion, 2) legally adequate

provocation, and 3) lack of cooling time. Actual heat of passion is established by the “fuming
and “emotionally…battered.”
Legally adequate provocation has several approaches. Words generally are not enough.
The humiliation during the debate will not suffice. Under the categorical approach, J asserts that
kicking J’s leg constitutes extreme assault. The leg was severely injured and likely hurt a lot. The
state may defend that the kick was accidental or B did not know it was hurt in the war. However,
a simple kick is unlikely to constitute extreme assault.
Under the reasonable person courts, the majority of courts use a reasonable person
standard. J’s physical characteristics as an “old fogey” with a bad leg would be taken into
account like in Camplin. An old man would be sensitive and more likely to be angry at someone
who is perhaps younger. J will want the courts to take his emotional characteristics into account
like in Cassassa. Regardless, the state would argue that a reasonable person simply would not
kill someone even if they’re old or angry. J has a life’s experience and likely has been humiliated
in the past. Someone of his age and experience as a debater would not kill.
Under the MPC, J can argue he was under extreme emotional disturbance. This requires
him to be under emotional disturbance with a reasonable excuse. He argues that the “fuming”
and being emotionally and physically battered after being humiliated qualifies as extreme
emotional disturbance. In addition, seeking revenge after someone who has tormented you is a
reasonable excuse. Words suffice, and being humiliated is enough. On the other hand the state
argues it is not a reasonable excuse. J was a debater and thus should expect and be used to the
other side attacking him in public.
Inadequate cooling time requires a lack of time to cool down. The state argues he cooled
down since there was considerable time between the start of chasing B and finally catching up to
him. J would defend that the anger was smoldering, since he was emotionally battered before the
chase and fuming after. The continued chase suggests he had not cooled down. In addition, the
anger was rekindled once he saw and was caught up with B and rekindled since he replayed last
month’s events in his head.
Thus, J is liable for voluntary manslaughter.
Involuntary Manslaughter (IM)
Involuntary manslaughter requires mere reckless or gross negligence. There is no

indication the attack was anything other than intentional.
Causation.
Causation requires actual (but for) and proximate (legal) cause. The beating was a direct
cause of B’s death. But for the beating, J would not have died. The death was foreseeable since
the head was targeted 50 times and there were no intervening acts. Thus, causation is satifisfied.
STATE v. JOE
Death of Sara (S)

Actus Reus
Actus reus requires a positive act of one’s volition. Joe’s “push” establishes the act.
Under the MPC, it is an act since this beating is not a spasm, unconsciousness, hypnosis, or not
of Joe’s volition.
Regarding omission’s, there is no general duty to help. Once S fell down the stairs Joe
had a duty to help. No indication is made regarding Joe helping.
Thus, actus reus is established.
Mens Reus (MR) – Homicide
1) Murder 1
Murder 1 requires premeditation and malice. There is no indication of Joe targeting S or

intentionally trying to kill her.
2) Murder 2
Murder 2 requires malice and serves as a dumping ground for everything without
premeditation or heat of passion. Malice looks at the intent to kill or cause grievous bodily harm,
or gross recklessness. There is no evidence of an intentional killing. Pushing someone generally
does not constitute grievous bodily harm.
with gross conduct. Joe consciously disregarded the risk by pushing into a crowd. In addition, a
hallway is likely narrow and someone may be hurt since one push affects everyone. On the other
hand, Joe would argue the risk was not substantial and unjustifiable. It was not substantial since
pushing a crowd simply causes it to sway, not for someone to fall down the stairs. It was
justifiable since he was trying to save his friend from being hurt. The state would counter that B
didn’t need saving. J had a bad leg and was likely old so he wouldn’t catch up to B anyways.
Thus, J was not reckless.
Gross conduct requires the social utility to be less than the magnitude of harm. The state
argues the probability of harm was great since he pushed into a crowd. In addition, the
alternative would be to do nothing since J was old and with a bad leg. On the other hand, J
defends that the social utility was high. He was helping a public debater who likely had respect
and prestige. B may have been useful to society. In addition, the type of harm was small since
pushing is not a deadly act. Thus, the conduct was not gross and Joe is not liable for murder 2.
3) VM
Voluntary manslaughter requires 1) actual heat of passion, 2) legally adequate

provocation, and 3) lack of cooling time. There is no heat of passion. Joe was not mad and thus is
not culpable for VM.
4) IM
Involuntary manslaughter requires mere reckless or gross negligence. Joe was not
reckless (see above) and his conduct was not gross (see above). Assuming the act was gross,
negligence requires that Joe should have known the risk. The state would argue he should have
known the risk from pushing a crowd. Pushing someone hard enough to fall down the stairs
would likely constitute a strong risk. Since Sara fell down the stairs she was likely right next to
it. Since Joe pushed her he was likely right next to Sara and thus next to the stairs and should
have realized that pushing at Sara’s direction would lead her to fall down the stairs. Joe may
defend he should not have realized the risk. He was worried and paying attention to B so was not
looking.
On balance, Joe’s act was negligent but his act was not gross so is not culpable for IM.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for the push, S would
not have died. Actual cause is established since the push was a link in the chain.
Proximate cause looks at foreseeability. It is foreseeable that pushing someone would
lead them to fall down. Joe would argue that the manner of the fall was not foreseeable. Though
they would fall, but people do not fall down the stairs. The state argues that it was foreseeable
since Joe likely knew where S was in relation to the stairs since he was likely standing near her
and thus a push that hard in that direction would be foreseeable that someone would fall down
the stairs.
Proximate cause also looks at intervening acts. The moose is certainly not foreseeable.
Animals are not kept at universities or for public debates. In addition, it is not foreseeable that
they would run loose. The state would argue that pushing S would cause her to be vulnerable
since after she fell she needed time to recover and could not dodge the moose. The moose would
likely be an intervening act.
Generally, even negligent medical malpractice does not break the link in the chain.
However, intentional acts and gross negligence do. The ambulance driver laughed and said “she
deserved it.” This suggest an intentional act to not treat S. This breaks the chain and thus
proximate cause is not established. Lastly, the prosecution will not likely bring cases like these
where causation is questionable.
On balance, Joe is not liable for the death of S.

AR – every crime requires a positive act of one’s volition. Under the MPC, it is a voluntary act
because it is not any of the categories of involuntary acts (spasm, unconscious, movement not of
one’s will, hypnosis).
Regarding omissions, there is no general act. The exceptions are statutory, status,
assumed care, creation of peril (positive and omission), and contractual.
Pos
Omiss
MR
Purp Purpose requires desire or aim. Knowledge requires substantial or virtual certainty.
Deliberate ignorance (ostrich defense) also suffices. Recklessness requires a conscious disregard
of a substantial and unjustifiable risk. Negligence requires the defendant should have known.
Strict liability requires no mens rea. It looks at 1) statutory language, 2) legislative intent, and 3)
policy. S/L indicia include hard to prove, highly regulated or high risk industry, large number of
crimes, low penalty, affecting public welfare
Know
Reck
Neg
S/L
MofF is a defense if it negates the mens rea of a material element. What you need to know is
what makes your conduct wrong.
MofL mistake of law or ignorance of the law is generally not a defense. The exceptions include
1) negating the mens rea 2) estoppel theories, and 3) Lambert exception (which requires notice,
regulatory offenses, and an omission).
Hom is the unlawful killing of another human being
M1 requires premeditation and malice
Carroll standard requires only purpose in addition to premeditation
Anderson standard requires purpose and preconceived design, which looks at planning, motive,
and manner.
M2 requires malice and is a dumping ground when there is not enogh for premeditation or
manslaughter. Malice is 1) an intent ot kill 2) intent to cause grave bodily harm, or 3) gross
recklessness. Gross recklessness requires a conscious disregard a substantial and unjustifiable
risk and the conduct to be gross. Gross requires the social utility (alternatives, benefit to society)
to be less than the magnitude of harm (type of harm/probability of harm) (Hand approach).
VM is the unlawful killing of another human being without malice. VM requires 1) actual heat of
passion (sudden anger after immediate provocation). 2) legally adequate provocation. Under the
categorical approach, prosecutor must prove it was mutual combat, extreme assault, observed
adultury, illegal arrest, or injury of a relative. A majority of courts use the reasonable person
standard, taking account only into the physical characteristics (camplin). A minority of courts
take into account the emotional characters (Cassassa).
Inadequate time requires the act to follow immediately after provocation while inflamed still.
Exceptions include rekindling and long smoldering.
IM requires mere reckless or gross negligence. Neglience requires that the defendant should have
known the risk.
DI D who operates a dangerous instrument is automatically liable for IM if he was negligent.
FM Any death that occurs during a felony is automatic (constructive) murder. The defendant
must have committed a felony.
It is limited by the 1) inherently dangerous doctrine precludes some of the least dangerous
felonies. It depends on the underlying felonly. Can look at it in the abstract and as commited. 2)
Merger doctrine precludes some of the most serious felonies. The felony must have an
independent purpose other than to kill. 3) the death must occur during the felony and in
furtherance of the felony. Under agency theory, defendant is only culpable for the liability of his
cofelons. An exception is the provocative act doctrine. D is culpable for the acts of others if he
created an atmosphere of malice. Under a proximate cause theory (for shield cases), D is
culpable for the deaths that proximately resulted from his unlawful acts. Death of co-felons are
justifiable in some jurisdictions.
MM Any death that occurs during an unlawful act not a felony automatically results in
involuntary manslaughter. It is limited by 1) proximate cause 2) regulatory/malam prohibitum,
and 3) dangerousness.
Cause requires actual (but for) and proximate (legal cause). Transferred intent applies.
Legal cause looks at foreseeablity and intervening causes. Interveining causes look at
foreseeability, control, and policy. Year and a day rule for deaths.
Attempt is the crime of trying to commit another crime. Mens rea required is purpose. Purpose is
the desire or aim to produce a certain result. Some jurisdictions allow knowledge and
recklessness. MPC allows purpose or belief.
Actus reus has several approaches. The first step is generally not used except in poisen cases.
Common law used the last step but is also not used anymore. The dangerous proximity approach
looks at how much has been done and how much is left over (holmes). Unequivocality test uses
(res ispa loquitur test) and looks at the defendants acts in the abstract to see if there is
unequivocal intent. The MPC combines the dangerous proximity and unequivocality tests
requiring a substantial step corroborative of intent.
Abandonment requires a voluntary and complete abandonment.
Impossibility is when the defendant has taken the last step but circumstances prevent the
completion of the crime. Factual impossibility is not a defense. True legal impossibility is a
defense. Hybrid cases depend on dangerousness and who we want to blame. The MPC looks at if
the circumstances were as believed would it be a crime. Under the MPC there is no impossibility
defense, but has mitigation if there is little or no chance of public danger.
Actus reus requires a positive act of one’s volition. Under the MPC, it is also a voluntary
act since it does not fall under any categories of involuntary acts (spasm, unconscious,
hypnotized, movement not of one’s will).
Regarding omissions’s there is no general duty to act. The exceptions include
statutory/status relationships, assumed duty, contractual duty, and creation of peril (positive and
omission).
Purpose requires desire or aim to produce a consequence. Knowledge requires
virtual/substantial certainty. Reckless requires a conscious disregard of a substantial and
unjustifiable risk. Negligence requires the defendant should have known.
Strict liability (S/L) requires no mens rea. To determine if it is S/L we look at 1) statutory
language, 2) legislative intent, and 3) policy. S/L indicia include public welfare offenses, large
number of cases, low penalty, high regulated or high risk industry, high prosecution burden. It
also includes morality offenses.
Mistake of fact is a defense if the mens rea of a material element is negated. What you
need to know is what makes your conduct wrong. Jurisdictional elements also look at 1) statutory
language, 2) legistlative intent, and 3) policy.
Mistake of law and ignorance of the law is generally not a defense. Exceptions include 1)
lack of mens rea, 2) estoppel theories, and 3) Lambert exception (notice, regulatory, omission).
Homicide is the unlawful killing of another human being. Murder 1 requires malice and
premeditation. Under the Carroll approach, purpose is enough in addition to premeditation and
no time is too short. Under the Anderson approach, purpose and preconceived design is needed.
Court looks at manner, motive and planning.
Murder 2 requires malice, and is a dumping ground where there is not enough for
premeditation or heat of passion. Malice is defined as 1) (express murder) intent to kill 2) intent
to cause grave bodily harm, or 3) (implied murder) gross recklessness. Gross recklessness is the
conscious disregard of a substantial and unjustifiable risk w/ gross conduct. Gross under the
Hand approach requires the magnitude of harm to outweigh the social utility.
Manslaughter is the unlawful killing of another human being without malice. Voluntary
Manslaughter requires 1) actual heat of passion (Sudden anger immediately following
provocation), 2) legally adequate provocation, under the categorical approach only observed
adultury, extreme assault, mutual combat, injury of relative, and illegal arrest suffice. Majority of
courts use a reasonable person standard like in Camplin and account for physical characteristics.
Minority of courts account for emotional characteristics of the defendant like in Cassassa, and 3)
inadequate cooling time, requiring act to immediately follow provocation while inflamed. The
exceptions include rekindling and long smoldering.
Under the MPC, words suffice, no provocation is needed, and no cooling is needed. The
D only needs to be under extreme emotional disturbance and with a reasonable explanation.
Reasonable is looked the defendants point of view as he believed it. The excuse cannot be
because of his bad personality or idiosyncratic morality.
Involuntary manslaughter requires mere reckless (see above), or gross negligence. Gross
is defined above. Negligence requires the defendant should have known. This is considered
negligent homicide under the MPC.
Dangerous instrumentality doctrine. A defend is culpable who negligently causes death
when using a dangerous instrument is autmoatcaly liable for IM.
Felony murder
Any death that occurs during the commission of a felony is automatic (constructive)
murder. BARKRM is murder 1, all others are murder 2. FM is limited by the inherently
dangerous doctrine (depends on what underlying felony is), and limits some of the least serious
crimes it can be viewed in the abstract or as commited. The merger doctrine limits some of the
most serious crimes. The felony must have an independent purpose other than to just kill. Also
the death must be in furtherance of the felony when a co-felon kills and death must be during the
felony. During beings with planning and ends at escape.
Under the agency theory, D is only liable for the acts of cofelons. An exception is the
provocation act doctrine, where D is liable for the acts of others if he created an atmosphere of
malice. Under the proximate cause theory the defendant is liable for the death proximately
resulting from his unlawful act.
Misdeameantor manslaughter – is any unlawful act not a felony that results in death is
automatically involuntary manslaughter. This is limited by 1) dangerousness ,2 ) proximate
cause, and 3) only for regulatory / non mala in se crimes.
Causation requires actual (but for) and legal (proximate) cause. Proximate cause looks at
foreseeability and interveining causes. Interveining causes again looks at foreseabilty but also
control and policy.
Attempt is the crime of trying to commit another crime. Mens reus must be purpose. A
minority of jurisdictions allow knowledge and recklessness (for reckless endangerment). MPC
allows purpose or belief.
There are several approaches to actus reus. The first step is not used except in poisen
cases. Common law used the last step. A more common approach is the dangerous proximity,
which looks at what has been done and what is left. Unequivocality test looks in the abstract to
see if the defendant had unequivocal intent (res ispa loquitur approach). The MPC combines the
unequivocality and dangerous proximity approach. It requires a substantial step corroborative of
intent.
Abandonment requires a complete and voluntary abandonment.
Impossibility occurs when the defendant has taken the last step and circumstances
prevent completion of the crime. Factual impossibility is not a defense. True legal impossibility
is a defense. Hybrid cases look at dangerous and who we want to blame. The MPC asks if the
circumstances were as believed, would there be a crime. If yes there is attempt. There is no
impossibility defense under the MPC, but if there is little or no danger to the public, there
mitigation is allowed.
Charles “Levenson is so hot I can never concentrate in class” Kuo
Grade
Criminal Midterm Fall 2008 – Levenson
1. B
2. C
STATE (S) v. JACKIE (J)
Death of Child
Actus Reus
Actus reus requires a positive act of one’s volition. Positive act is established by buying
the tarantula and putting it into the bowl, then holding it out for the kids to reach their hands into
it. It is also a voluntary act under the MPC, since it does not fall under any categories of
involuntary act (spasm, unconscious, hypnosis, movement not of one’s will).
Regarding omissions, there is no general duty to act. However, J has created a peril. Once
the child was stung, she has a duty to help the child. There is no indication she did anything after
the child was stung.
Thus, actus reus is established.
Mens Reus – homicide
Homicide is the unlawful killing of another human being.
Murder 1
Murder 1 requires premeditation in addition to malice. There is no indication she

intended to kill the child, since she planned “to scare children” for Halloween. Thus she is not
liable for murder 1.
Voluntary manslaughter (VM)
Manslaughter is the unlawful killing of another human being without malice. Heat of
passion requires 1) actual heat of passion, 2) legally adequate heat of passion, and 3) inadequate
cooling time. There is no intent here since she only planned “to scare children.” Thus she is not
liable for voluntary manslaughter.
Murder 2
Murder 2 requires malice, and serves as a dumping ground where not enough for
premeditation or manslaughter. Malice is 1) intent to kill (express malice), 2) intent to cause
grave bodily harm, or 3) gross recklessness. There is no intent to kill or to cause grave bodily
harm since she only wanted to scare.
Gross recklessness (implied malice) requires a conscious disregard of a substantial and
unjustifiable risk with conduct that is gross. S argues that J conscious disregarded since she
bought a dangerous insect and put a real one near children. Large insects generally have poison.
She even asked the pet owner if it was okay, suggesting she knew it could have been dangerous.
In addition, this was a substantial risk since it was a live animal which could contain poison.
Alternatively, J will defend that she didn’t know tarantulas are dangerous or would bite.
In addition, it was not a substantial risk, since tarantulas don’t usually sting people (they bite).
Plus, it was not an unjustifiable risk since it was Halloween, and being scared is a concept
imbedded in the holiday.
Gross is defined by the Hand approach to require the magnitude of harm to outweigh the
social utility. S would argue that the type of harm is great. Being bitten or stung by a spider is
likely. In addition, the poison can easily kill a small child who is likely more vulnerable than
adults. There is no social utility other than to benefit J and her own amusement. The alternative
would have been to get a fake spider, which could have been equally effective and likely cost
less.
On the other hand, J will argue the type of harm is small. Tarantulas only look scary but
are not deadly. In addition the probability of harm was small. The spider was around tons of
candy so if it was hungry it would just eat that and not the child. The social utility is not that low,
since she’s helping kids enjoy the holiday by being scared in a better fashion.
On balance the conduct was likely gross but she did not consciously disregard the
risk, and is not liable for murder 2.
Involuntary manslaughter (IM)
Involuntary manslaughter requires gross (criminal) negligence or mere recklessness. She

did not conscious disregard a substantial and unjustifiable risk for recklessness (see above). The
conduct was gross (see above).
Negligence requires that the defendant should have known it was dangerous. A
reasonable person would have used a real animal that could be dangerous. A reasonable person
should have known the risk of a large spider having poison and biting a child.
Thus, J likely should have known it was dangerous and may be liable for involuntary
manslaughter.
Dangerous instrumentality
A defendant who is negligent when using a dangerous instrument and death occurs is
automatically liable for IM. If the spider is a dangerous instrument, J could be liable for IM.
Felony Murder (FM)
Any death that occurs during the commission of a felony is automatic murder. J
distributed food with a spider near by. This may constitute a “manner likely to cause grave bodily
harm” depending on how dangerous tarantulas are. If they are not poisonous, then it is not a
felony and would only be a misdemeanor (see below). In addition, J argues the statute is vague.
Candy is not food, it is merely snacks. In addition, they are wrapped. The statue was referring to
non-wrapped goods, and was trying to protect people from eating insects not being bitten.
A spider biting is not BARKRM, and thus not murder 1. If it is a felony, it would fall
under murder 2.
Felony murders are limited by inherently dangerous felonies. In the abstract, distributing
food with a spider is not likely dangerous, since chances of a spider biting can be low. This
favors J. The as committed approach favors S. The crime was dangerous as committed since the
child was bitten. The felony does not merge, since she did have an independent purpose. The
felony did occur during the felony. There were no co-felons so in furtherance exception does not
apply.
Depending on whether the spider is poison, J may be liable under felony murder.
Misdemeanor manslaughter
A death that occurs during any unlawful act not a felony is automatically involuntary
manslaughter (unlawful act doctrine). Whether J is liable depends on whether Tarantulas are
lethal insects. If they are legal insects, she is likely guilty under this doctrine.
Misdemeanor manslaughter is limited by 1) dangerous, 2) proximate cause, and 3)
regulatory crimes. This misdemeanor may have been dangerous depending on if tarantulas are
poisonous, but the death was likely a proximate cause of death (see below), and is a regulatory
crime. Thus, J may be culpable under this doctrine.
Mistake of law
Mistake of law or ignorance of the law is generally not a defense. The exceptions include
1) lack of mens rea, 2) estoppel theories, and 3) Lambert exception (does not apply here). No
mens rea is mentioned in the statute for the first exception. J argues under estoppel theories that
she tried to find out the law from the pet store owner. S would counter that the pet store owner is
not an official authorized to tell her the law. Thus, J has no mistake of law defense.
Strict Liability (S/L)
Strict liability requires no mens rea. A strict liability crime looks at 1) language of statute,
2) legislative intent, and 3) policy. The language mentions no mens rea, but normally crimes
would default to recklessness. There is no indication of legislative intent, though the phrase
“distribute food” likely referred to commercial vendors and restaurants, not to people who give
out candy during Halloween. Policy indicates that this could be an S/L crime. There are likely a
large number of cases (there are bugs everywhere). It would be hard to prove for the prosecution
(since the bug won’t likely be around for evidence). It is a regulatory crime, and food is a highly
regulated industry.
On balance, it is likely an S/L crime and J is liable for the misdemeanor.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for Jackie putting a
spider in the bowl, the child would not have screamed and ran away. J defends that even if she
put a fake spider, the child could have screamed and ran anyways. However, she is still a link in
the chain and actual cause will be established.
Proximate cause looks at foreseeability and intervening acts. S argues that it is
foreseeable a child will scream and go running in the street. Children are easily scared and tend
to pay even less attention when they are scared. In addition, it was likely at night time when this
happened so it was harder for the child to see. Alternatively, S argues kids are scared all the time
and it is not foreseeable they will run away in a frenzy.
Intervening acts look at foreseeability and control/policy. S argues it was foreseeable the
child will run out onto the street. J counter that is not foreseeable a car will hit him at the exact
moment. She has no control over the time at the time. Though S may say J could have yelled out
something or ran after the child. The S may want to blame the car, which should know there
would likely be a lot of kids running around during this holiday. Thus, J likely did not cause the
child’s death.
Taking property
Attempt
Mens Reus
The mens reus for attempt requires purpose. Purpose requires a desire or aim. Jackie had
a desire to take down the neighbor’s decoration since she has a terrible holiday and is mortified.
Her purpose is enough for “knowingly” described in the statute.
Actus Reus
Actus reus (defined above) is established by “taking down the decorations.” Jackie has
already taken the last step towards the crime, so the other approaches are irrelevant.
Impossibility
Factual impossibility is not a defense, though legal defense is. S argues that the fact that
the decorations are actually hers makes it factual impossibility and thus she has no chance. J
defends that there is no legal against taking down your own decorations and thus she has a
defense. S would likely not want to blame J and the act was not dangerous.
Under the MPC, if the circumstances were as believed by J, it would have been a crime.
She would be guilty, but since her act was not a public danger, there would be mitigation.
On balance, this is likely factual impossibility and culpable for attempted taking of
property
Conclusion: J is not liable for the homicide but is liable for attempted taking of property.
STATE (S) v. BO (B)
Death of Devin (D)

Actus Reus
Actus reus requires a positive act of one’s volition. Positive act is established by grabbing
and hitting D in the head with the axe. A voluntary act under the MPC is anything not an
involuntary act. B will counter that he “stumbled” towards D, and thus it was a spasm. The
movement was not of his volition and he simply tripped and fell towards D. S argues that Bo
may still have control over his arms and his upper bodily even as he is falling.
Regarding omissions, there is no general duty to act. The fact that B and D were
neighbors does not likely establish any relationship. However, B has created a peril. Once D was
hit, there is no indication B tried to help.
Thus, actus reus is likely established.
Mens Reus – homicide
Murder 1
Murder 1 requires premeditation in addition to malice (see below for malice).

Under the Carroll approach, purpose is enough and no time is too short. The state argues
that B had the purpose since he grabbed a shovel and swing wildly. Switching to a deadly
weapon that was sharp (the axe) suggests a purpose to kill. By targeting for the head, B must
have aimed the axe. The head is a small spot compared to the rest of the body. In addition, the
head is a vulnerable spot likely to cause death. B defends that he lacked the cool deliberate
thought for premeditation. He was “so angry” that he started to shake.
Under the Anderson approach, purpose (see above) and preconceived design is
established. Preconceived design looks at manner, motive, and planning. The manner was one
direct hit to the head, suggesting a cool deliberate attack. On the other hand, B has swung wildly
with a shovel for awhile before that, suggesting the opposite. The motive was revenge. B wanted
to hurt D for sleeping with his wife, calling him names, and making his “life difficult.” There is
little evidence of planning. B unlikely planned the axe and shovel within reach. These are tools
one simply always leave around. In addition, an axe is not an effective weapon in this modern
day and age for murder. Lastly, Bo “looked around” for weapons, suggesting he did not know
where it was before and thus did not plan it.
On balance, there is likely not enough for murder 1.
Murder 2
Murder 2 requires malice, and serves as a dumping ground where not enough for
premeditation or manslaughter. Malice is 1) intent to kill (express malice), 2) intent to cause
grave bodily harm, or 3) gross recklessness.
B had the intent to kill. He aimed for the head with a deadly weapon. This would qualify
for an intent to cause grave bodily harm, since an axe to the head would cause most people
serious injury.
On the other hand, B defends he did not have the intent. He only wanted to scare D by
swinging the shovel to prove his manhood. He stumbled towards D when he had the axe and
never wanted to actually hurt D.
Gross recklessness is not applicable since there is strong indication of intent, and thus B
would be culpable for murder 2.
Manslaughter is the unlawful killing of another human being without malice. Heat of
passion requires 1) actual heat of passion, 2) legally adequate heat of passion, and 3) inadequate
cooling time.
Actual heat of passion requires immediate anger after provocation. B was “so angry”
immediately after he had heard D was sleeping with his wife, saw his neighbor taking his
decorations, been called a loser, and had a pumpkin shoved into his mouth.
Legally adequate provocation has several approaches. Under the categorical approach,
only mutual combat, adultery, extreme assault, injured relative, and illegal arrest qualify. B
asserts it was adultery. However, the adultery must be observed and words are generally
insufficient under common law. B also asserts it was extreme assault. D had “shoved a tiny
pumpkin” into B’s mouth. Shoving a small pumpkin may not be extreme. S would argue D was
trying to feed B and be nice. B however, may see this as unwelcome and offense. However, it
was a small pumpkin, and while offense, was not physically injurious to B. Thus, this is unlikely
extreme assault and B would lose under the categorical approach.
A majority of courts use the reasonable person standard that takes into account physical
characteristics. Bo’s smaller size (100 pounds) compared to a linebacker (who is likely bigger,
since linebackers are generally huge) would be taken into account. This approach favors S, and B
would likely lose since merely being smaller and being bullied would not even provoke a
reasonable person to kill.
Some courts take into the emotional characteristics of the defendant. This approach
favors the defendant. A reasonable person being bullied by his neighbor may be inclined to
retaliate after he had heard D was sleeping with his wife, saw his neighbor taking his
decorations, been called a loser, and had a pumpkin shoved into his mouth. A reasonable person
would be angry enough by all this combined and could be argued to kill.
On the other hand, the state would assert that B only heard D was sleeping with his wife.
There are no facts to indicate this was true. In addition, D was being sarcastic and perhaps joking
here and there. Lastly, D may have been “feeding” B when he put a pumpkin into his mouth.
Respecting the 3), there must be inadequate cooling time, which requires the act to
immediately follow provocation while enraged. The killing happened while B and D were still
outside, and there was no break in time for B to cool. Thus inadequate cooling time is
established. B of course may assert his anger had been long smoldering since D had made his life
difficult ever since moving in.
Under the MPC, no provocation is needed, words suffice, and cooling time is irrelevant.
B only needs to be under extreme emotional distress with a reasonable explanation. Reasonable
must be from the defendant’s point of view as he sees it. B argues that he was under extreme
emotional distress due to the anger, the humiliation, hearing about his wife, and all the trouble D
caused in the past. It was a reasonable excuse since a bad neighbor like that could anger a
reasonable person in his position. The S would argue it was not reasonable. People have bad
neighbors all the time and B’s killing was a result of his bad morality and idiosyncratic
personality.
On balance, B would likely receive a mitigation to heat of passion.
Involuntary manslaughter requires mere recklessness or gross (criminal) negligence.

There is no indication there was anything other than intent, and thus IM does not apply.
A defendant who operates a dangerous instrument negligently and death occurs is

automatically liable for IM. The shovel is a blunt instrument and is unlikely dangerous, but the
axe is sharp and likely a dangerous instrument. B must have known at the least axes are deadly,
and thus would automatically be liable for IM.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for B’s grabbing of
the axe and stumbling towards D, D would not have gotten hit in the head. At common law, there
was a year and a day rule. Since D dies exactly 12 months later, this satisfies the time limit. On
the other hand, B would argue that D had a preexisting heart condition. He would have had the
blood clot whether or not the axe hit head.
On balance, actual cause is likely established.
Proximate cause looks at foreseeability and intervening acts. It is foreseeable that getting
hit in the head would cause brain problems like the blood clot eventually. B would defend he did
not have control of the situation. Policy dictates that we should blame B for hitting him in the
head with an axe.
The defendant takes his victim as he finds him, and thus the decision to refuse treatment
generally is not a superseding clause. Even though D’s decision to stay at home to study for
criminal law instead of going to the hospital is unreasonable, B would still be liable.
On balance, causation is established and B would likely be culpable for voluntary

manslaughter.
STATE v. DEVIN
Theft (attempt)
Devin is dead so cannot be prosecuted for any crimes.

Accomplice
Accomplice liability is causing or helping someone commit a crime. It is not a separate

crime but a theory of liability for the substantive offense. Since the common distinctions are
removed, all accomplices are culpable for the substantive offense except for accessory after the
fact.
Actus reus requires help. Mere presence is not enough. Words may suffice. Principal does
not need to be aware. Help does not have to make a difference. Act must be capable of helping
(not under MPC). Help can be by omission.
Mens reus requires knowingly help with purpose for the crime to succeed. Defendant
does not need to know things the principal doesn’t need to know. Principal does not need to be
convicted. Some jurisdictions require only knowledge for serious crimes. Others call it criminal
facilitation.
Purpose can be proved by 1) stake in the venture, 2) nexus
Under MPC, purpose of promoting or facilitation of the crime suffices.
Reckless and negligent crimes require 1) purpose to assist, and 2) negligent as to the
results.
S/L generally requires more mens rea and purpose still.
The reasonably foreseeable doctrine holds defendant culpable for all natural and probably
consequences.
Abandonment was not a defense at common law. Some jurisdictions allow full and
voluntary renunciation with efforts to prevent it. MPC allows abandonment if complicity
terminates and cops are informed or efforts made to stop it.
Conspiracy
Conspiracy is an agreement to commit crime. It is a separate and inchoate crime

punishing preparatory conduct.
Actus reus requires an express or implied agreement between 2 or more qualified
defendants.
Gebardi rule says victims do not qualify. Wharton rule says conspiracy does not apply if
an act inherently requires 2 people. Bilateral rule requires 2 guilty minds while the unilateral
(MPC) requires only 1.
Overt act is any legal or not act by any conspirator carried out for the conspiracy. Not
required at common law and not needed for serious crimes.
Mens reus requires knowingly help with purpose for the crime to succeed. Knowingly
suffices in some jurisdictions for more serious crimes. Do not need to know attendant
circumstances if they are not needed for the substantive crime.
Purpose can be inferred from 1) stake in the venture, 2) no legitimate purpose, and 3)
grossly disproportionate sales.
Pinkerton Rule allows automatic co-conspirator (vicarious) liability for all crimes in
furtherance on the conspiracy. This is rejected by the MPC.
Scope of conspiracy defines the extent of Pinkerton Rule. A wheel conspiracy has many
conspirators working with a middleman to create multiple conspiracies. The spokes can be
connected by claiming each has a vested interest in the common venture. A chain conspiracy is a
single conspiracy with different roles along a distribution line all tied to the success of the
operation. A conspiracy with aspects of both wheel and chain requires courts to look at whether
groups knew the extent of the operation and benefit from it. Braverman rule states that a
conspiracy with multiple objectives is one conspiracy.
Abandonment at common law requires voluntary and complete renunciation and
notifying co-conspirators to avoid further co-conspirator liability.
The MPC requires voluntary and complete renunciation and notifying co-conspirators (or
police) to avoid further co-conspirator liability, but can also avoid the original conspirator charge
by thwarting the conspiracy.
Self Defense
Self defense is a justification and a type of necessity allowing defense of oneself when
under unlawful attack. Self defense requires 1) honest and reasonable fear, 2) of death of serious
bodily injury, 3) imminence, 4) no excessive force, 5) duty to retreat (some jurisdictions), and 6)
not initial aggressor. Reasonable is a person from the defendant’s point of view. Factors include
1) physical attributes of everyone, 2) prior experience, 3) knowledge of attacker.
Death or serious bodily injury is required at common law. Other juridictions (and MPC)
include BARKRM.
Imminent can be here and now, reasonable, or inevitable. Generally reasonable person in
defendant’s situation is used. MPC is more flexible and looks at if defendant actually believed.
Deadly force can only be used when threatened with deadly force. Some jurisdictions
allow deadly force against BARKRM.
There was no duty to retreat at common law. Duty to retreat applies at the moment of
attack, when using deadly force in defense, and it is reasonably safe to do so unless in one’s
abode (castle exception).
The one who brings the fight to a level of violence is the initial aggressor (versus initial
instigator).
If one of elements missing, some jurisdictions allow for imperfect self defense.
Defense of Others
Traditionally in defending others, you stand in the shoes of the one using self defense.
Modern trend is that you only have to be reasonable.
Defense of Property
Deadly force can never be used to defend property.
Police Enforcement
Police can only use deadly force if the suspect poses significant threat of harm to others.
Police can use non-deadly force to apprehend a misdemeanant.
Necessity
Necessity (choice of evils defense) is a justification defense for one who commits a crime
because it is the lesser of two evils. It requires 1) choice of evils, 2) no apparent alternatives, 3)
lesser evil chosen, 4) imminence, 5) not brought upon self, and 6) no contrary legislation.
For 2), Defendant must surrender immediately upon safety in prison escape cases.
For 3), lives are worth more than property. Necessity could not be used traditionally for
homicide. Minority of courts now it and agree that more lives worth more than fewer lives.
Reasonable requires the defendant to believe it is necessary and that evil avoided is greater than
evil caused from society’s view.
For 4) at common law it was here and now. Some jurisdictions have relaxed this standard.
MPC looks at imminence as a factor in reasonableness.
For 5) MPC allows necessity when brought upon self but is still liable for original
negligence.
Duress
Duress (coercion) applies when a crime is committed due to compulsion by another.

Duress at common law requires 1) threat of death or serious bodily injury, 2) that is imminent
(here and now used but some have relaxed), 3) to defendant (and later common law to close
relatives/friends), 4) such that a reasonable person would yield (reasonable being a man of
ordinary fortitude and courage), 5) not brought upon oneself, and 6) not for homicide
Under the MPC, duress requires 1) unlawful force against anyone (imminence and type
of harm are factors), 2) causing a person of reasonable firmness in the defendant’s situation to
yield, 3) and not brought upon self.
Some jurisdictions allow imperfect duress if for a faulty duress defense.
Insanity
Insanity is a full defense and focuses on the mental status at the time of the crime. The
defendant also must be competent or sane at the time of trial. He must be able to consult with his
attorney and understand the proceedings against him.
The M’Naghten standard requires 1) defendant presumed sane at time of offense, 2)
mental disease or defect, 3) that defendant does not understand the nature/quality of his acts or
that they were wrong.
Mental disease or defect is any abnormal condition of the mind substantial affecting
mental processes and impairing control. Factors include history, clear symptoms, number
qualifying, sincere, stigma, and brought upon self.
Legal wrong is moral wrong.
Common law additions include the irresistible impulse (police at elbow) test, where he
could not have controlled himself (like wait) even if he wanted to, and deific decree, where god
told him to even know he knew it was wrong, and knew what he was doing.
Under the MPC, 1) and 2) (from above), 3) defendant lacks substantial capacity to
appreciate the criminality or to conform to the law. Appreciate is knowledge and emotional
concern.
Diminished Capacity (DM)

DM is a partial defense allows an expert to show that intent or mens rea was not formed
due to a lower mental status. This is rejected in some courts. Other courts allow DM to drop a
specific intent crime to a general one. Specific intent depends on 1) mens rea, 2) historical name,
and 3) existence of a lesser crime. Under the MPC, DM can drop a crime from general defense to
no crime.
Intoxication
Intoxication is alcohol or drug use that substantially impairs the mind causing prostration
of mental faculties. Involuntary intoxication is a full defense and can be from 1) deception, 2)
force, or 3) pathological. Voluntary intoxication is a partial defense not allowed at common law;
it can reduce a specific intent crime down to general intent. MPC uses the same approach.
Entrapment
Entrapment is a full defense when government conduct unfairly induces defendant to

commit a crime. Under the federal approach, the focus is on predisposition of the defendant.
Under the California approach, the focus is on government conduct to see if it would induce a
normal law abiding person under the circumstances to commit the crime. Under the MPC,
conduct of law enforcement goes to the judge.
Rape is unlawful sexual intercourse without consent by use of force or threat.
Death Penalty
Pros include retribution for one who takes life, deterrence, incapacitation to prevent
future murders and history. Cons include cheapening value of life, not proven deterrent, life w/o
parol same, costs more, cannot correct for mistakes, and discrimination.
Bifurcated trials are used with only certain jurors. Aggravating and mitigating
circumstances must be used. There are limitations due to the 8th,14th amendments and equal
protections. Courts cannot execute minors or the insane. There cannot be mandatory death
sentences and guidelines must be given to the jury.
Accomplice
Accomplice liability is causing or helping another commit a crime. It is not a separate

crime but a theory of liability for the substantive offense. Since common law distinctions have
been removed, all accomplices are culpable for the substantive offense except accessory after the
fact.
AR requires help. Mere presence is not enough. Words may suffice. Principal does not
need to be aware. Help does not have to make a difference. Help can by omission. Act must be
capable of helping (not under MPC).
MR requires knowledge of help with the purpose for the crime to succeed. Defendant
does not need to know things the principal does not need to know. Knowledge is sufficient for
more serious crimes or in some jurisdictions for criminal facilitation. Principal does not need to
be convicted.
Purpose can be inferred from stake in the venture or nexus.
Reckless and negligence crimes require purpose to help and negligent regarding the
results. S/L generally also requires a purpose to help and more mens rea than the principal.
Under the MPC, purpose or facilitation of crime suffices.
The reasonably foreseeable doctrine adds culpability to the defendant for any natural and
probably consequences of the crime.
Abandonment is not allowed at common law. Some jurisdictions now allow it and require
a full and voluntary renunciation with efforts to prevent the crime.
MPC allows it if complicity is terminated and cops informed or efforts made to stop it.
Conspiracy
Conspiracy is an agreement to commit crime. It is a separate and inchoate crime

AR requires an express or implied agreement b/w qualified defendants. Gebardi rule
protects victims. Wharton rule says conspiracy does not apply if it inherently requires 2 people.
Some jurisdictions use the bilateral (plurality requirement) rule which requires 2 guilty minds.
The MPC uses the unilateral rule which requires only 1 guilty mind.
Some courts now require an overt act, or an act (legal or not) by any conspirator for the
purpose of carrying out the conspiracy. Not needed for serious crimes or at common law.
MR requires knowledge of agreement with purpose for the crime to succeed. Defendant
only needs to know attendant circumstances if they are not needed for the substantive crime.
Knowledge is sufficient for dangerous crimes.
Purpose can be inferred from 1) stake in the venture, 2) no legitimate use, 3) grossly
disproportionate sales.
Pinkerton rule allows automatic co-conspirator liability for any crime in furtherance of
the conspiracy. This is rejected by the MPC.
Scope of conspiracy defines the extent of Pinkerton. A wheel conspiracy has many
conspirators working with one middle man to create many conspiracies. Spokes can be
connected by claiming each has a vested interest in the common venture. Chain conspiracy is a
single conspiracy with different roles along a distribution line all tied to the success of the
operation. Conspiracies with both wheel and chain aspects require courts to look at whether
groups knew the extent of the operation and benefit from it. Braverman rule states that a
conspiracy with multiple objectives is one conspiracy.
Abandonment is not allowed at common law. Some courts now allow full and voluntary
renunciation in addition to notifying co-conspirators to remove further co-conspirator liability.
MPC allow full and voluntary renunciation in addition to notifying co-conspirators (or
police) to remove further co-conspirator liability but also allows removal of the conspiracy
charge if the crime is thwarted.
Self Defense (SD)
SD is a justification and type of necessity that allows defense of oneself when under
unlawful attack. It requires 1) honest and reasonable fear 2) of death or serious bodily injury, 3)
that is imminent, 4) with no excessive force, 5) with duty to retreat (in some jurisdictions, and 6)
not the initial aggressor.
Reasonable is a person in the defendant’s situation. Factors include physical attributes of
everyone, knowledge of the attacker, and defendant’s prior experiences.
Modern courts allow SD for (MPC) BARKRM.
Imminence can be here and now, reasonable, or inevitable. Reasonableness is now used
and is a reasonable person in the defendant’s situation. MPC is more subjective and looks at what
the defendant actually believed.
Only deadly force can be used when threatened with deadly force. Some jurisdictions
allow BARKRM.
Duty to retreat was not required at common law. It applies at the only at the moment of
attack, deadly forced is being used in defense, and no reasonable retreat to safety is possible
(unless in one’s home under castle exception).
Defendant can be an instigator but not an initial aggressor, which is someone who raises
it to a level of violence.
Some jurisdictions allow imperfect SD for if one element is missing.
Defense of Others
Traditionally you stand in the shoes of the one who is being attacked. Modern courts only
require that the defendant be reasonable in defense of others.
Defense of Property
Deadly force can never be used to defend property.
Law Enforcement
Police can only use deadly force if suspect poses significant danger to others or himself.
Unlawful force can be used to apprehend a misdemeanant.
Necessity
Necessity (choice of evils defense) applies when defendant commits a crime because he
faced a choice of evils. It requires 1) choice of evils, 2) no apparent alternatives (must surrender
in prison cases), 3) imminent (here and now used but some courts relaxed), 4) lesser harm chosen
(life worth more than property, traditionally does not apply to homicide, minority courts and
MPC allow more lives worth more than less lives, reasonableness requires defendant believes it
is necessary and he evil avoided is great than evil caused from society’s view ), 5) not brought
upon self, 6) no contrary legislation.
If necessity fails and still seems unfair, defense can ask for jury nullification but
prosecutor will likely argue against allowing this argument.
Duress
Duress applies to crimes committed due to coercion by another. At common law duress
requires 1) threat of death or serious bodily injury, that is 2) imminent, 3) to defendant (or close
relative/friend), 4) such that a reasonable person or ordinary fortitude and courage would not
yield, 5) not brought upon self, and 6) not for homicide.
Under the MPC, duress requires 1) any unlawful threat to anyone, imminence and type of
harm are mere factors, 2) causing a person of reasonable firmness in the defendant’s situation to
yield, 3) not brought upon self.
Some jurisdictions allow imperfect duress for faulty duress defenses.
Insanity
Insanity is a full defense and focuses on the mental status at the time of the crime. The
defendant also must be competent or sane at the time of trial. He must be able to consult with his
The M’Naghten standard 1) presumes sanity at time of offense, 2) requires disease of
defect of the mind, 3) such that defendant did not understand the nature/quality of his acts or that
they were wrong.
Disease or defect of the mind requires abnormal mental conditions substantially affect
mental processes and impairing control. Factors include clear symptoms, history, number
qualifying, sincere, stigma, brought upon self.
Common law additions include the irresistible impulse test (police at the elbow). This test
applies if the defendant couldn’t control himself even if he wanted to. The Deific Decree
addition applies if God commanded the defendant, even though defendant knew his acts were
wrong and knew what the nature of his acts.
The MPC standard requires 1), 2) (same as M’Naghten above), 3) lack substantial
capacity to appreciate the criminality or conform his conduct to the law. Appreciate is knowledge
and emotional concern.
Diminished Capacity (DM)
Diminished capacity is a partial defense that allows expert witnesses to show a lack of
intent of mens rea due to a lower mental status. This is rejected in some courts. Other courts
allow it to drop a specific intent crime down to a general one. Specific intent crime indicia
include 1) mens rea mentioned, 2) historical name, and 3) whether a lesser crime exists. The
MPC allows DM to drop a general intent crime to no crime.
Intoxication
Intoxication is drug or alcohol use that substantially impairs the mind causing prostration
of mental faculties. Involuntary intoxication is a full defense and can be from 1) deception, 2)
force, or 3) pathological. Voluntary intoxication is a partial defense and only applies to drop a
specific intent crime down to a general one. Voluntary intoxication was not a defense at common
law. MPC uses the same approach.
Entrapment
Entrapment is a full defense when unfair police conduct induces one to commit a crime.
Under the federal approach, the focus is on predisposition of the defendant. The California
approach focuses on conduct of the government and whether it would induce a normally law
abiding person to commit a crime under the circumstances. Under the MPC, conduct of the
officer goes to the judge.
Rape is unlawful sexual intercourse with another by force or threat.
Death Penalty
Pros include incapacitation, deterrence of future murders, and retribution for one who
takes life and history. Cons include no proof of deterrence and can encourage future murders,
cheapen value of life, cannot correct for mistakes, costs more, discrimintation. Life w/o parol can
do the same for deterrence or incapacitation.
Bifurcated trials are use and cannot impose mandatory death sentences. Guidelines to
special jurors must be given, and must consider mitigating versus aggravating circumstances.
Courts cannot execute minors or the retarded.
Practice Hypos
Tutorial 4 Question 2
STATE (S) v. MISSY (M) and BETSY (B)
Bank Robbery
Attempt
Attempt is the crime of trying to commit another crime. It is a separate and inchoate
crime that merges with the actual crime if complete.
MR
MR for attempt requires purpose. Purpose is desire or aim. M and B needed money for
law school bills. They had the desire to pay for those bills since “they decided to rob a bank.”
Buying guns, money bags, and taking preparations all are signs of a desire to actually rob a bank
(rather in jest).
AR
AR requires a positive act of one’s volition. Positive act is established by buying guns
and money bags. B also “called the bank” and M “visits the bank.” Both also wrote a demand
note and drove to the bank. M also enters the bank by walking in. It is also voluntary under the
MPC because it is not any category of involuntary act (spasm, unconscious, hypnosis, movement
not of one’s will).
There are several approaches to AR. The first step is no longer used except in poison
cases. The last step was used in common law and also no longer used.
The dangerous proximity looks at what has been done and what hasn’t. S argues they
have bought guns and money bags. They have called the bank, checked out its layout, and wrote
a demand note. In addition, they drove to the bank and M entered the bank. Conversely, B argues
she didn’t enter the bank. Both B and M argue that the guns were never used and they never
demanded the cash and then escape. Overall, there are more acts already done and AR
established.
Using the unequivocality (res ispa loquitur) test, defendants are viewed in the abstract to
see if there was an unequivocal intent. It is fairly unequivocal and there should be no other
reason to carry demand notes, guns, and money bags into a bank. AR is established.
Under the MPC which combines the previous 2 tests, it requires a substantial step
corroborative of intent. A substantial step (or many) has been taken (see above under AR). You
don’t write a demand note and get money bags and guns unless you are robbing a bank.
On balance, AR is established.
Impossibility
Impossibility applies when defendants have completed the last step but circumstances
have prevented the completion of the crime. This does not apply here. M nor B have used the
guns and demanded money from the bank.
Abandonment
Abandonment is not available at common law. Modern courts require a full and voluntary
renunciation.
B decided to drop out. She likely had a full and voluntary renunciation since she dropped
out before seeing realizing the guard was suspicious. Alternatively, B could have seen the
security guards or cameras of the bank as they were just about to enter and simply chickened out.
Overall, she likely has an abandonment defense.
Alternatively, M did not have a true change of heart. She ran out of the bank because the
guard got suspicious. Facts suggest she got nervous and perhaps chickened out also because B
ditched her. Overall, she does not have an abandonment defense and is guilty of the attempt.
On balance, only M is guilty of attempt and B is not.
Conspiracy
Conspiracy is an agreement to commit a crime. It is a separate and inchoate crime that

punishes preparatory conduct.
AR
AR requires an express or implied agreement between qualified defendants. The

agreement likely occurred when B and M “decide[d] to rob a bank.” Their concerted action of
writing a note together and driving to the bank together also demonstrate agreement. The
Gebardi and Wharton Rule do not apply. There are no victims and bank robbery does not
inherently require 2 people. Under the bilateral rule, two guilty minds are required. Both B and
M can be guilty thus qualify under the unilateral/MPC (only one guilty mind required) as well.
Overt Act
At common law an overt act was not needed. Some courts now requires an additional act
(legal or not) by any conspirator carried out for the purpose for the purpose of the conspiracy.
Calling to bank hours suffices, since that determines when they can rob it. Once they find out the
hours, they can choose whether to rob it when its open or closed. Visiting the bank also suffices
since it was “to check out its layout” to make the robbery easier. Thus, an overt act is established.
MR
MR requires knowingly agree with the purpose for the crime to succeed. The fact that
they both decided to rob a bank likely by conversing, intentionally buying guns/money bags,
calling/visiting the bank, writing a note, and driving there suggest they knew what they were
doing and wanted the crime to succeed in order to pay their law school bills. Purpose can also
inferred from a stake in the venture (they both would likely split profits). Thus, MR is
established.
Co-Conspirator Culpability
Under the Pinkerton Rule, there is automatic co-conspirator liability for any crimes done
in furtherance of the conspiracy. However, neither M nor B are guilty of additional requires for
co-conspirator liability.
Abandonment
At common law, one can avoid further co-conspirator liability by making a full and
voluntary renunciation and informing co-conspirators. M did not intend to abandon. B “decide[d]
to drop out of the plan.” This is likely a full and voluntary renunciation (see above) and she
likely told B. If she didn’t, M must have noticed that B was gone or walked in the other
direction. Thus M can avoid further co-conspirator liability, even though there were not any.
Under the MPC, one can avoid further co-conspirator liability by making a full and
voluntary renunciation and informing co-conspirators or police (see above). It also allows one to
avoid the original conspiracy by thwarting the crime. B just left on the bus and made no effort to
thwart the plan and thus cannot avoid the original conspiracy.
On balance, both B and M are culpable for conspiracy.
Accomplice liability

crime but is a theory for culpability of a substantive offense. Common law distinctions have been
removed and all accomplices are guilty of the substantive offense except for accessory after the
fact. Since neither B nor M is an accessories after the fact, they would both be guilty of attempt.
AR
AR is help. B helped by calling the bank. M helped by visiting the bank.
MR
MR requires one to knowingly help with the purpose for the crime to succeed. The both
likely knew since they liked orally discussed the details of the plan. It is unlikely that one called
the bank and the other visited it, thus splitting the work to be done, without knowing what
they’re doing and wanting the crime to succeed. Thus, MR is established.
Reasonably Foreseeable Doctrine
Under this doctrine, defendants are culpable for any natural and probably consequences
that result. Since nothing else happened after B dropped out, this doctrine does not apply.
Abandonment
At common law, abandonment was not a defense to accomplice liability. Some courts
now allow a full and voluntary renunciation (see above) when efforts are made to stop. Neither
M nor B showed any signs of trying to stop the plan, and thus both cannot use the abandonment
defense.
On balance, M and B are guilty of attempted bank robbery until accomplice liability.
Criminal Defenses Tutorial
Question 1
1)
STATE (S) v. POE (P)
Murder of Casey (C)
Self Defense (SD)
SD is a justified attack on another when under unlawful attack. SD requires 1) honest and
reasonable fear, 2) of death or serious bodily harm, 3) that is imminent, 4) with no excessive
force, 5) no duty to retreat, 6) not the initial instigator.
P had an honest fear since he was “scared.” On the other hand, C was just joking and
perhaps P could have realized it as a joke. Reasonable is from the defendant’s situation and looks
physical attributes of everyone, prior experiences, and knowledge of the attacker. P’s brother had
just died from AIDS and thus he would naturally be more afraid of HIV (which becomes AIDS).
P may not have known it was a joke, but a reasonable person would how likely see this situation
as a joke. It is a worker in a strange costume (unless they work at a hospital) suddenly holds a
syringe threatening with HIV. Unless P had prior instances where P and C are enemies, a
reasonable person would have seen this as a joke. Thus, the act is not likely reasonable.
HIV is death of serious bodily harm. The disease is known to destroy your white blood
cells causing eventual death and disease.
Imminence looks at here and now, reasonable, and inevitable. Courts now use a
reasonable person in the defendant’s situation. P and C were likely in the same room, and P
would not likely be scared unless he saw a syringe in C’s hand. Thus, the situation was likely
here and now, causing a reasonable person in P’s situation to believe the attack was about to
happen. Under the MPC, a more subjective approach is used and looks to see if defendant
reasonably believed it was imminent, and if P saw a syringe then it most likely would be.
No excessive force was likely used. A chair is generally a blunt instrument and not a
deadly force. Even if it is, deadly force is allowed to use against deadly force, since HIV is a
fatal disease.
Duty to retreat was not allowed at common law. It does apply at the moment of attack,
when defendant is using deadly force, and it is reasonable to do so unless in one’s abode (castle
exception). The phrase “instead of running out of the office” suggest that it is possible to safely
do so. Since P worked there everyday, he likely knew where the exit was. P defends that he was
not using deadly force. Chairs are not considered deadly weapons and thus duty to retreat did not
apply. Moreover, P asserts the office is his home. It is likely he spends 40 hours a week there (the
average) and thus lives there in a sense. On the other hand, this is not his actual home and he
does have a place to retreat to. On balance, duty of retreat likely does not apply.
P was not the initial aggressor since C was the one who made the initial threat. If C did
not actually have a syringe in his hand was threatened as an initial instigator, then P might have
been the initial aggressor since he raised it to a level of violence with the chair.
On balance, self defense is not established.
Imperfect SD
Some courts allow a faulty (honest but unreasonable) SD defense to mitigate murder to
manslaughter. Since P’s SD is likely fault, he is likely only guilty of manslaughter.
3.
S v. BROCK (B)
Murder of Evelyn (E)
Defense of Others
Traditionally, third party stands in the shoes of the person using SD (minority). B likely
would not assert a defense of others since J lacked SD. Modern courts (majority) requires only
the third party to be reasonable. Thus, B was likely helping a co-worker and thus was reasonable
and has a defense of others to any murder charge.
Question 2
STATE (S) v. GEORGE GREEN (GG)
Damaging government property
Necessity
Necessity (Choice of lesser evils defense) is a justification for a crime committed because
it was the lesser of two evils. It requires 1) choice of evils, 2) no apparent alternative, 3)
imminence, 4) lesser evil chosen, 5) bring upon self, and 6) no contrary legislation. Choice of
evils are letting birds die and polluting the drinking water (and ecosystem) versus damaging
government property and holding back the space projects.
There are however alternatives. GG could have lobbied the government or contacted the
space shuttle company.
Imminence generally requires here and now, though some jurisdictions have relaxed it.
Under MPC imminence is just a factor in reasonableness. The space shuttle was likely launching
immediately and thus the situation was likely imminent. On the other hand, the death that may
occur from poisoned drinking water may not be imminent. In addition, the ecosystem dying out
may take time and thus may not be imminent. It may take several rocket launches before any
damage of this sort occurs. There is also no indication that the birds would immediately die
directly from the launch. Thus imminence is not established.
The lesser evil must be chosen. One approach is that the defendant believes it is
necessary, which GG did since he ordered the launch of the smaller rockets. Another is the
defendant must have chosen the lesser evil from society’s point of view. Poisoning of drinking
water by the rocket fuels can lead to lives being hurt and thus life would be more valuable than
property. Alternatively, there’s no proof that people will actually drink the water that may be
poisoned. The space program may also have the potential for scientific discovery that saves lives
(somehow). Lives may be involved in the launch and the space shuttle could have exploded from
the damage. Lastly, society has chosen via its government that the space launch is not the lesser
evil, thus GG likely did not choose the lesser evil.
GG likely did not bring this upon himself. He did not cause a space station to be built and
to damage the environment. Alternatively, he may have voted for government officials who
support it.
There is contrary legislation. The space program is likely government sponsored and thus
they must have passed legislation to support it.
On balance, there is no necessity. The only alternative would be jury nullification. S will
like argue against giving that instruction. It also does not matter if it is direct or indirect civil
disobedience.
S v. ROCKET MAN (RM)
Murder and damaging government property
Duress (common law)
Duress is an excuse for a crime committed under compulsion. At common law duress
requires 1) threat of death of serious bodily harm, 2) that is imminent, 3) to defendant (early
common law), 4) such that a reasonable person would not yield, 5) not brought upon self, and 6)
not for homicide.
There is no threat of death or serious bodily harm. The threat was to kidnap his family.
Regarding imminence, courts generally use here and now, though other courts have
relaxed it. The threat to kidnap may not have been here and now. The family could have been
safe still and not about to be kidnapped at the very moment. Thus imminence is not established.
The threat was not to the defendant. Later common law courts allowed threats to close
family members and friends, thus this would suffice.
Regarding 4), reasonable is defined as a man of ordinary courage and fortitude. An
ordinary man likely would yield when his family is threatened since he cares about his family.
This is likely brought upon RM. He joined Greenpeace likely voluntarily. Alternatively,
he might have joined a peaceful group, and never realized a threat would result.
The threat was not for GG to kill anyone, but to sever hoses, which had nothing to with
homicide.
On balance, duress would not be established under common law.
Duress (MPC)
Duress under the MPC requires 1) unlawful threat to anyone, 2) one of reasonable
firmness in the defendant’s situation would not yield, and 3) not brought upon self (see above).
MPC considers type of harm and imminence as factors. Threat of kidnapping, while not
here and now imminent, is a serious threat. Kidnapping is BARKRM and his family is of very
close relationship to RM.
A reasonable person in defendant’s situation would have yielded since even one of
reasonable firmness cares for their family and will certainly choose severing fuel hoses (mere
property) damage to save lives of loved ones (and perhaps the environment and more).
Thus, duress is likely established under the MPC.
Necessity
Necessity (choice of lesser evils defense) justifies a crime committed because it was the
lesser of evils. It requires 1) choice of evils, 2) no apparent alternative, 3) lesser evil chosen, 4)
imminent (see above duress), 5) not brought upon self (see above), and 6) no contrary legislation.
Choice of evils is between severing hoses and kidnapping of the family. There may have been
alternatives such as calling the police, telling NASA, or convincing congress.
The lesser evil must be chosen. Generally lives are worth more than property. The price
of one’s family in hostage is greater than property subjectively to RM and to society since safety
of people is likely still greater than property. Moreover, kidnapping is BARKRM and inherently
dangerous and may result in death. On the other hand, since someone died, severing the hoses is
not the lesser evil than to kidnapping. However, this was not known at the time of the crime and
likely not a factor in RM’s decision when he made his choice. Thus, the lesser evil is likely
chosen.
There is likely contrary legislation since people have voted for NASA and supports the
space program.
On balance, necessity is not established. The only alternative would be jury nullification
though the prosecution would strongly argue against allowing that argument. It also does not
matter if it is direct or indirect civil disobedience.
Question 3
STATE v. IMA COMRAD (C)
Violation of Section 2222
Entrapment
Entrapment is an excuse for a crime committed because of unfair government conduct

that induces one to commit a crime. The California approach (and MPC) does not apply here
since section 2222 is under federal law.
Bond (B) is retired from government service and thus no long directly works for the
government and is likely just a private citizen trying to “do something to help society.” On the
other hand, he has kept in touch with his old buddies and has lunch weekly. Thus, he is update
and likely still has all the necessary skills. He might have gotten permission to work on this case,
but no facts indicate. Thus, B is not a government agent and thus entrapment would not apply.
-government officials also include those who work and cooperate with the government. If he
took on an assignment or was cooperating working with his old buddies (assuming they aren’t
retired), then he is a government agent
The federal approach focuses on predisposition of the defendant and generally allows any
prior bad acts by the defendant. Her past conduct according to B include being a long time
smuggler, and thus may smuggle again. In addition, C was eating at several restaurants
specializing in Russian cuisine. This could indicate that C is associating with Russians and
wanting to help them (and their business). Alternatively, it is common for people to eat food of
their ethnicity. Moreover the restaurants are not Russian restaurants but only specialize in their
cuisine.
C also obtained a visa to vacation in Moscow. This could have been a business trip to
obtain smuggle materials, since going to Moscow could be an opportunity to get in touch with
potential smugglers on the other side. On the other hand, it is common to visit one’s home
country with one’s family and the trip could be completely innocent.
Also, C has a psychiatrist who is likely Russian (because of the name). The psychiatrist
could be a fellow Russian smuggler. However, this could be a mere coincidence that the person
is Russian. Moreover, people may be more comfortable with people of a similar ethnicity. The
psychiatrist may be more understanding and a better doctor as a result. The doctor may not even
be Russian (she could be Ukrainian).
Lastly, C’s job is to sell computer parts to exporters. This gives him the background
needed to smuggle goods out of the country since it is related to his job. Conversely, this could
also be a coincidence. There are a lot of people who sells many computer parts to exporters.
Moreover, the exporters might not be Russian.
Since C also committed the crime, there is certainly a strong argument that he was
predisposed to committing the crime. Alternatively, Bond approached C and asked C to make a
special delivery. B initiated and not C. Moreover, he “balked at the proposal,” showing
reluctance and that he was not predisposed. C also defends that he was not predisposed to sell
weapons to aid foreign countries because he only aided because B said he would be helping out
American, not Russia.
The federal approach does not focus on the conduct of the officer. However, C can bring
a motion to dismiss for outrageous government conduct, but B is not a government agent.
Moreover, this motion almost always fails.
On balance, there is no entrapment defense.
Insanity
Insanity is a full defense that excuses a crime due to one’s mental status at the time of the
crime. Defendant also must be competent or sane to stand trial. He must be able to consult with
his attorney and understand the proceedings against him. There is no indication this is not true at
the time of trial.
Insanity under the M’Naghten standard 1) presumes sanity at the time of offense, 2)
requires a disease or defect of the mind, 3) such that the defendant did not know the nature of his
acts or that his acts were wrong.
A disease of defect of the mind is any abnormal mental condition substantially affecting
mental processes or impairing control. Factors include clear symptoms, history, number of
people, sincere, stigma, and bring upon self. C had clear symptoms since she was diagnosed as a
workaholic with hallucinations that she was someone else. She had a history since she visits her
psychiatrist every now and is a workaholic. Regardless, the number of people would be high. A
lot of people work hard and may suffer as a workaholic. The disease may be easy to fake, since it
is not hard to pretend to be someone else. The stigma of a workaholic is not bad, in fact people
may see one as hard working. Lastly, she did bring this upon herself since the hallucinations
result “whenever she is engaged in the pressures of a large sale” and she agreed to this large sale.
Overall, C does not have a mental disease.
-moreover she was had a prescription and also likely had drugs in the past
C likely knew what she was selling computer since she knew it was “morally okay” to do
so. Morally wrong is legally wrong, and since she thought it was okay, she asserts that she did
not know they were wrong. Moreover, she was “driven with her new obsession” even when the
psychiatrist dissuaded her. Thus, she likely did not know that her acts were wrong.
On balance, there is no insanity defense under the M’Naghten standard.
Common Law Additions
Common law additions include the irresistible impulse test (police at the elbow test). C
likely could not control herself even if she wanted since she was “driven with her new
obsession.” The psychiatrist is similar to a person of authority and dissuaded her but she clearly
did not stop. Thus, C is likely insane under this standard. The Deific decree approach does not
apply since C did not hear voices from God.
MPC Insanity
Under the MPC, 1) and 2) (from M’Naghten above) are the same, with 3) requiring a lack
of substantial capacity to appreciate the criminality and to conform to the law. C lacked
substantial capacity since she thought she was Secretary of State. However, calling the White
House is unrelated to her separate crime of selling computer hardware. She may think she is
someone else, but she still had knowledge she was selling computers and appreciated it because
felt “morally okay.” Alternatively, she did not appreciate the criminality because she didn’t
realize it wasn’t morally okay. She conformed to the law because could control herself and has
not done anything illegal in her eyes.
On balance, C does not have an insanity defense under the MPC
Diminished Capacity (DC)
DC is a partial defense that allows expert witnesses to prove a lack of intent or MR due to
an lower mental status. Some courts reject this approach.
Others allow it to reduce a specific intent crime to a general intent crime. Specific intent
crimes look at 1) mens rea, 2) historical name, and 3) whether a lesser crime exists (not
mentioned). The mens rea is intent, and thus generally indicates a specific intent crime. There is
no indication regarding the history of the name. On balance, this is likely not a specific intent
crime and there is no DC defense.
The MPC allows you to reduce from a general intent crime to no crime. C likely had no
mens rea for the crime due to her hallucinogenic state and may not be culpable for the crime.
Alternatively, think you are someone else is irrelevant to selling computer hardware. C may have
thought she was selling computers as the Secretary of State. Therefore, she likely has no DC
defense under the MPC either.
Intoxication
Intoxication is the use of drugs or alcohol that substantially alters the mind causing
prostration of mental faculties. Involuntary intoxication is a full defense and can be from threat,
force, or pathological. Since she likely took the Tylenol with codeine voluntarily, only
pathological would apply. There’s no indication it had any adverse effects, and Tylenol (no idea
what codeine does) generally does not cause someone to commit a crime.
Voluntary intoxication is a partial defense and can reduce a specific intent crime to a
general one (see above under DC). The MPC uses the same approach.
-However intoxication can only be used if mens rea had not yet been formed. It is possible she
decided to sell the hardware before taking the Tylenol.
On balance there is no intoxication defense.
Actus Reus (AR)
AR requires a positive act of one’s volition. Under the MPC, it is also a voluntary act if it
is not an involuntary act (spasm, hypnosis, unconscious, movement not of one’s will).
Regarding omissions, there is no general duty to act. The exceptions include creation of
peril, statutory/status/assumed/contractual duty. Creation of peril can be seen as a positive act
or an omission.
Mens Reus (MR)
Purpose is desire or aim. Knowledge is virtual or practical certainty. The ostrich

defense/willful blindness/deliberate ignorance also suffice. Recklessness requires a conscious
disregard of a substantial and unjustifiable risk. Negligence requires that the defendant should
have known.
Strict liability (S/L)
S/L requires no mens rea and is generally rejected by the MPC. Normally it would
default to recklessness. To determine if S/L applies, we look at 1) language of statute, 2)
legislative intent, 3) policy. S/L indicia also include regulatory or high risk industry, low penalty,
high numbers, large prosecution burden, public welfare or morality offenses.
Mistake of Fact
Mistake of fact is a defense and applies if it negates the material element. What you need
to know is what makes your conduct wrong. Jurisdictional elements depend on 1) language of
statute, 2) legislative intent, and 3) policy.
Mistake of Law
Ignorance or mistake of law is generally not a defense unless 1) no mens rea, 2) estoppel
theories, and 3) Lambert exception. The Lambert exception requires notice, regulatory offenses,
and omission. Cultural defense is no defense.
Homicide
Murder 1
Murder 1 requires premeditation and malice (see below for malice).

Under the Carroll approach, purpose in addition to premeditation is required. No time is
too short.
Under the Anderson approach, purpose (see above) and preconceived design is required.
Preconceive design looks at manner, motive, and planning.
Murder 2
Murder 2 requires malice and is a dumping ground when there isn’t enough for
premeditation or heat of passion. Malice is an intent to kill (express malice), intent to cause grave
bodily harm, or gross recklessness (implied malice).
and the conduct to be gross. Gross under the Hand approach requires the magnitude of harm
(type of harm, probability of harm) to outweigh the social utility (benefit to society, cost of
alternatives).
Manslaughter is killing without malice. VM requires 1) actual heat of passion, 2) legally

adequate provocation, and 3) lack of cooling time. Actual heat of passion requires sudden anger
after provocation. Words are generally insufficient. Legally adequate provocation has several
approaches. Under the categorical approach, only extreme assault, observed adultery, illegal
arrest, injured relative and mutual combat applies. Majority of courts use a reasonable person
standard, using only physical characteristics like in Camplin. Other courts take into account
emotional characteristics like in Cassassa. Inadequate cooling time requires anger to follow
immediately after provocation. The exceptions include rekindling and longer smouldering.
Under the MPC, no provocation is needed, can have cooling time, words can be
sufficient, and can target the wrong person. Defendant must subjectively be under extreme
emotional distress (EED), and objectively have a reasonable excuse. Reasonable is looked at
from defendant’s point of view or the defendant’s situation as he believes them to be. The
excuse cannot be because of his bad personality or idiosyncratic morality.
IM requires mere reckless or gross negligence. Reckless and gross are discussed above.
Negligence requires the defendant should have known.
A defendant who causes death while negligently handling a dangerous instrument is

automatically culpable for IM.
Felony Murder (FM)
FM says that any death that occurs during a felony is automatic (Constructive) murder.
Felony must be proved (AR + MR). All BARKRM is murder 1. The rest is murder 2.
There are several limitations to FM. The inherently dangerous doctrine limits some of the
least dangerous felonies. FM only applies to inherently dangerous ones like BARKRM. The
felony can be viewed in the abstract or as commited.
The merger doctrine requires the felony to have an independent purpose other than to kill
and limits some of the most serious crimes. Malice must be proved anyways.
The death must also occur during and in furtherance of the felony. Duration of the felony
begins with planning and ends w/ escape. Under the agency theory, defendant is only liable for
deaths from co-felons. The exception is the provocation act doctrine, where defendant is culpable
for acts of others (not co-felons) if he creates an atmosphere of malice.
Under the proximate cause theory, defendant is culpable for all death that proximately
result from his unlawful acts.
Unlawful Act Doctrine
The Misdemeanor Manslaughter (Unlawful Act Doctrine) says any unlawful act not a
felony that results in death is automatic IM. The misdemeanor must be proved (AR + MR). This
doctrine is limited to 1) dangerous acts, 2) by proximate cause, and 3) mala in se (non
regulatory) crimes.
Causation
Causation requires actual (but for) and proximate (legal cause). Death must generally
must occur within a year and a day. Actual cause requires a link in the chain. Proximate cause
looks at foreseeability of harm and intervening acts. Intervening acts looks at foreseeability and
control and policy (who we want to blame).
Attempt
Attempt is the crime of trying to commit another crime. Attempt is a separate and
inchoate crime that merges with the actual crime if complete.
MR requires purpose. MPC allows purpose or belief. There are several approaches to AR.
The first step is not used except in poison cases. The last step was used in common law.
Dangerous proximity test looks at what has been done and what is left. Unequivocality (res ispa
loquitur) test looks in the abstract to see if there was an unequivocal intent. The MPC combines
the previous two tests and requires a substantial step corroborative of intent.
Impossibility occurs when the defendant has completed the last step but circumstances
is. Hybrid cases look at dangerousness and who we want to blame. Under the MPC there is no
impossibility defense. It asks if the circumstances were as defendant believed whether there
would have been a crime. If yes, he is culpable for attempt. If there is no public danger,
defendant can receive mitigation.
Abandonment was not allowed at common law. Some courts now require a full and
voluntary renunciation before the last step.
Accomplice Liability

crime but a theory of culpability for the substantive offense. Common law distinctions have
generally been removed and now all accomplices are culpable for the same punishment except
for accessory after the fact.
AR requires help. Mere presence is not enough. Words may be enough. Act does not have
to make a difference. Principal does not need to know of the help. Act must be capable of helping
(not under MPC). Help can be by omission.
MR requires knowing help with purpose for the crime to succeed. Defendant does not
need to know what the principal does not need to know. Principal does not need to be convicted.
In some courts, knowledge is sufficient for criminal facilitation. It may also be sufficient for
serious crimes.
Under the MPC, purpose to promote or facilitate the crime suffices.
Reckless and negligent crimes require 1) purpose to assist, and 2) negligent regarding the
results. Under the MPC, the accomplices only need to have the same MR as principal.
Courts are split on S/L crimes. Generally knowledge or purpose is required.
Under the reasonably foreseeable doctrine, defendant is culpable for all natural and
probably consequences but not for separate frolics. This is rejected by the MPC.
Abandonment was not allowed under common law. Modern courts have allowed it if
there is a full and voluntary renunciation with efforts to prevent the crime. MPC allows it if
complicity is terminated and efforts made to stop it or police is timely notified.
Conspiracy
Conspiracy is an agreement to commit crime. Conspiracy is a separate and inchoate crime

that punishes preparatory conduct.
AR requires an express or implied agreement between qualified defendants. Gebardi rule
protects victims. Wharton rule does not allow conspiracy for crimes that inherently require two
people. Bilateral (plurality) rule requires two guilty minds while unilateral (MPC) requires only
one.
An overt act is not required at common law. Some courts require an act (legal or not) by
any conspirator carried out for the purpose of the conspiracy. An overt act is not needed for
serious crimes in some jurisdictions.
MR requires knowledge of agreement w/ purpose for the crime to succeed. Defendant
only needs to know of the attendant circumstances if they are needed for the substantive offense.
Knowledge is sufficient in some courts for serious crimes.
Purpose can be inferred from stake in the venture, no legitimate use, or grossly
Pinkerton rule states that there is automatic co-conspirator liability for any crime carried
out in furtherance of the felony. This is rejected by the MPC.
There are several approaches to the scope of the Pinkerton rule. In a wheel conspiracy,
multiple conspirators all collaborate with the same middleman to create multiple conspiracies. In
a chain conspiracy, one conspiracy has different roles in one line of distribution working
together for one operation. Conspiracies with both aspects depend on whether groups know the
extent of the conspiracy and benefit from it. Under the Braverman rule, a conspiracy with
multiple objectives is one conspiracy.
Abandonment at common law allows one to prevent further coconspirator liability with a
full and voluntary renunciation and informing the coconspirators.
The MPC allows one to prevent further coconspirator liability with a full and voluntary
renunciation and informing the coconspirators or the police. It allows removes the original
conspiracy charge if defendant thwarts the crime.
Self Defense (SD)
SD (type of necessity) allows justified force when under unlawful attack. SD requires 1)
honest and reasonable fear, 2) of death or serious bodily injury, 3) that is imminent, 4) no
excessive force, 5) duty to retreat (in some jurisdictions), and 6) not the initial aggressor.
Reasonable is from the defendant’s point of view. Factors include physical attributes of
everyone, prior experiences, and knowledge of the attacker. MPC looks at whether defendant
reasonably believed force was necessary.
In some jurisdictions (MPC), SD is allowed when facing BARKRM.
Imminence can be hear and now, reasonable, or inevitable. Courts use reasonable person
in the defendants situation. MPC looks at whether the defendant reasonably believed it was
imminent.
Lethal force can be used to against lethal force. Other courts (MPC) allows lethal force
against BARKRM.
At common law there was no duty to retreat. In modern courts, duty to retreat applies at
the moment of attack, when defendant is planning to use deadly force, and defendant knows it is
reasonably safe to do so (unless in one’s home, castle exception).
The initial aggressor is one who raises it to a level of violence (compare to instigator).
If there is a faulty self defense claim, an imperfect self defense is allowed in some
jurisdictions to mitigate from murder to manslaughter (under EED theory).
Defense of Others
Traditionally, one stands in the shoes of the one in danger and can only assert the
defense if the one being helped actually could use SD. Modern (majority) courts only require
the defendant to reasonably believe force is required.
Defense of Property
Deadly force is never allowed in defense of property. Citizens can only use deadly force
to prevent dangerous felonies. At early common, deadly force could have been used to prevent
dangerous felonies
Police
Police can never use deadly force to apprehend a suspect unless the suspect poses a threat
of danger to others or himself. He is allowed to use nondeadly force to apprehend a
misdemeanant.
Necessity
Necessity (choice of lesser evils defense) allows a crime to be justified because it is the
lesser of two evils. It requires 1) choice of evils, 2) no apparent alternative, 3) imminence, 4)
lesser evil chosen, 5) not brought upon self, and 6) no contrary legislation.
Surrender is required in prison escape cases. There must be no known lawful
alternatives.
Imminence generally requires here and now, but some courts have relaxed this
requirement. Under the MPC imminence is a factor.
Lives are worth more than property. Majority of courts do not allow necessity for
homicide. Minority (MPC) courts say more lives is worth more than less lives.
The choice must be honest and reasonable. The harm avoided must be greater than harm
caused from society’s point of view.
Under MPC, you can bring necessity upon yourself but you would still be culpable for
the original negligence.
If necessity fails and is still unfair, defendant can try for jury nullification. The
prosecution will likely argue against allowing this argument.
Duress
Duress is an excuse for a crime committed under compulsion. At common law, duress
required 1) threat of death or serious bodily injury, 2) imminence, 3) to defendant, 4) such that a
reasonable person of ordinary fortitude and courage would not yield, 5) not brought upon self,
and 6) not for homicide.
Imminence requires here and now, but some courts have relaxed.
Early common law required duress only to be defendant. Later common law courts added
close relatives and friends.
Duress under the MPC requires 1) an unlawful threat to anyone, 2) such that one of
reasonable firmness in the defendant’s situation would not yield, 3) not brought upon self.
Imminence and type of harm are factors on a sliding scale and the reasonableness standard is
more subjective.
Some courts allow imperfect duress claims to mitigate the crime.
Insanity
Insanity is a full defense due to a mental defect at the time of the crime. The defendant
also must be competent or sane to stand trial (at the time of trial). He must be able to consult
with his attorney and understand the proceedings against him.
Insanity under M’Naghten standard 1) presumes sanity at the time of the offense, 2) a
disease of defect of the mind, and 3) defendant did not know the nature of his acts or that they
were wrong.
Disease of defect of the mind is any abnormal mental condition substantially affecting
mental processes or impairing control. Factors include history, clear symptoms, number
qualifying, sincerity, stigma, and brought upon self.
Moral wrong is legal wrong.
Common law additions include the irresistible impulse (police at elbow) test. The
defendant could not control himself even if a cop was at his elbow. The deific decree test applies
if defendant was commanded by god even if he knew the nature of his acts or that his acts were
wrong.
Under the MPC, 1) and 2) are the same as M’Naghten above, 3) defendant must lack
substantial capacity to appreciate the criminality and to conform to the law. Appreciate requires
knowledge and emotional concern.
DC is a partial defense that allows experts to be used to show intent or mens rea was not
formed due to a lower mental status. Some courts reject DC. Others allow it to reduce a specific
intent crime down to a general intent crime. Specific intent indicia include 1) mens rea language,
2) historical name, and 3) whether a lesser crime exists. The MPC allows DC to reduce a
diminished capacity from general intent down to no crime.
Intoxication
Intoxication is drug or alcohol use that substantially impairs the mind causing prostration
of mental faculties. This defense cannot be used if mens rea was already formed. Involuntary
intoxication is a full defense and can be from force, deception, or pathological. Voluntary
intoxication is not a defense at common law. It can reduce a specific intent crime down to
general intent. The crime is a specific intent crime (see above). The MPC uses the same
approach.
Entrapment
Entrapment is a full defense and an excuse for a crime because of unfair government
conduct causing one to commit a crime. Citizens who work or cooperate with the government
suffice. Under the federal approach, the focus is on predisposition of the defendant and evidence
of prior bad acts can be used. A motion to dismiss for outrageous police conduct can be
brought but this motion almost always fails. Under the California approach, the focus is on
conduct of the government and whether it would cause a normally law abiding citizen to commit
the crime under the circumstances. Under MPC, conduct of the law enforcement goes to the
judge.
Rape is unlawful sexual intercourse without consent by force, fear or fraud.
Death penalty
Pros include incapacitation, deterrence of future murders, and retribution for one who
takes life and history. Cons include no proof of deterrence and can encourage future murders,
cheapen value of life, cannot correct for mistakes, costs more, discrimination. Life w/o parol can
do the same for deterrence or incapacitation.
Bifurcated trials are use and cannot impose mandatory death sentences. Guidelines to
special jurors must be given, and must consider mitigating versus aggravating circumstances.
Courts cannot execute minors or the retarded.
Actus Reus (AR)
AR requires a positive act of one’s volition. Under the MPC, it is voluntary if it is not an
involuntary act (spasm, hypnosis, unconscious, movement not of one’s will).
Regarding omissions there is no general duty to act. The exceptions include creation of
peril, contractual, status, special relationship, assumed duties. Creation of peril can be seen as
stretching the positive act or an omission.
Mens Reus (MR)
Purpose requires desire or aim. Knowledge is virtual/practical certainty. Willful

blindness/ostrich defense is also sufficient for knowledge. Reckless requires a conscious
disregard of a substantial and unjustifiable risk. Negligence requires the defendant should have
known.
S/L requires no mens rea (rejected by MPC). The default level for no mens rea is
reckless, so to determine if S/L applies court looks at 1) language of statute, 2) legislative intent,
and 3) policy. S/L indicia include public welfare or morality offenses, high number, low penalty,
highly regulated/risk industry, or high prosecution burden.
Mistake of Fact
Mistake of fact is generally a defense only if it negates the mens rea of a material
element. What you need to know is what makes your conduct wrong. Jurisdictional element
looks at 1) language of statute, 2) legislative intent, and 3) policy. At common law one is under
for the greater crime, but culpable for the lesser crime under the MPC.
Mistake of Law
Mistake or ignorance of the law is generally not a defense. The exceptions include 1) no
mens rea, 2) estoppel theories, and 3) Lambert exception. Cultural defense is not a defense.
Homicide
Murder 1
Murder 1 requires malice (see below) and premeditation. Premeditation requires a cool
deliberate thought.
Under the Carroll approach, purpose and premeditation are required. No time is too short
Under the Anderson approach, purpose (see above) and preconceived design are needed.
Preconceived design looks at planning, motive, and manner.
Murder 2
Murder 2 requires malice and is a dumping ground for when there is not enough for
premeditation or heat of passion. Malice is 1) intent to kill (express malice), 2) intent to cause
grave bodily harm, 3) gross recklessness (implied malice).
and the conduct to be gross. Gross (under the Hand approach) requires the magnitude of harm
(type/probability of harm) to outweigh the social utility (benefit to society/cost of alternatives).

adequate provocation, and 3) lack of cooling time. Actual heat of passion requires sudden anger
after provocation. Words are generally insufficient.
only extreme assault, mutual combat, observed adultery, illegal arrest, and injured relative
suffice.
Majority of courts use a reasonable person standard and only account for physical
attributes (Camplin). Other courts account for emotional attributes as well (Cassassa).
Inadequate cooling time requires the anger to follow immediately after provocation. The
exceptions include rekindling and long smoldering.
Under the MPC, provocation is not needed, words sufficient, and there can be cooling
time. The defendant must subjectively be under extreme emotional distress and have a
reasonable excuse. Reasonable is looked at from defendant’s point of view. The victim also does
not have to be the one who provoked the defendant.
IM requires mere recklessness or gross (criminal) negligence. Recklessness and gross are
defined above. Negligence requires that the defendant should have known.
Dangerous Instrumentality
A defendant who causes death while negligently handling a dangerous instrument is

Felony Murder (FM)
Felony murder says any death during a felony is automatic (constructive) murder. The
felony must be proven (MR + AR). All BARKRM felonies result in murder 1, all others result in
murder 2.
The inherently dangerous doctrine precludes some of the least dangerous felonies. Only
inherently dangerous felonies (BARKRM) qualify. It depends also on the underlying felony. This
can be viewed in the abstract or as committed.
The merger doctrine precludes some of the most serious felonies and requires the felony
to have an independent purpose other than to kill. Malice must not need to be proved anyways to
qualify for FM.
The death must also occur during and in furtherance of the felony. Duration of the felony
begins with planning and ends with escape. Under the agency theory, the defendant is only
culpable for the acts of co-felons. The exception is the provocation act doctrine, which holds
culpability when an atmosphere of malice is created.
Using the proximate cause theory (shield cases), defendant is culpable for all deaths that
proximately result from their unlawful acts.
Death of a co-felon may be justified (viewed as suicide) or viewed as death of a human
being.
Misdemeanor Manslaughter (MM)
MM or the unlawful act doctrine states that any unlawful act not a felony that results in
death is automatically IM. The misdemeanor must be proved (MR + AR). This doctrine is limited
to 1) dangerous acts, 2) proximate cause, and 3) mala in se (nonregulatory crimes).
Causation
Causation requires actual (but for) and proximate (legal cause). Death must generally
occur within a year and a day. Actual cause requires a link in the chain. Proximate cause looks
at foreseeability and intervening acts. Intervening acts look at foreseeability and also control and
policy (who we want to blame).
Attempt
crime that merges with the substantial crime when complete.
MR requires purpose. Under MPC, purpose or belief is sufficient. Some courts require
purpose only for attendant circumstances while other courts require purpose for all elements.
There are several approaches to AR. The first step is no longer used except in poison
cases. The last step was used at common law. The dangerous proximity test looks at what has
been done and what is left. The unequivocality (res ispa loquitur) test looks in the abstract to see
if there was unequivocal intent. The MPC combines the last two tests and requires a substantial
step corroborative of intent.
Impossibility arises when defendant has taken the last step but circumstances prevent
defense. Hybrid cases look at dangerousness and who we want to blame (policy).
Under the MPC, there was no impossibility defense. If there’s no public danger,
mitigation is likely allowed. The MPC asks if the circumstances were as believed, would there be
a crime. If yes, then there is attempt.
Abandonment was not allowed at common law. Modern courts allow abandonment only
when there is a full and voluntary renunciation before the last step is taken.
Accomplice
crime but a theory for culpability of the substantive offense. Common law distinctions have been
removed and now all accomplices are guilty of the substantive offense except for accessory after
the fact.
AR requires help. Mere presence is insufficient. Words may be sufficient. Help does not
have to make a difference. Principal does not have to be aware. Help must be capable of helping
(not under MPC). Help can also be by omission.
MR requires knowledge of help with purpose for the crime to succeed. Principal does not
need to be convicted. Knowledge may be sufficient in some courts for serious crimes or for a
separate crime of criminal facilitation. You do not need to know what the principal does not need
to know.
Purpose can be inferred from a stake in the venture or a nexus.
Reckless and negligence crimes require a purpose to help and negligent or reckless
regarding the results. Under the MPC, the accomplice needs to only have the same MR as the
principal.
S/L crimes generally still require knowledge or purpose, but courts are split.
probably consequences but not for separate frolics. This is rejected by the MPC.
Under common law, there was no abandonment defense. Some courts now allow it with a
full and voluntary renunciation with efforts made to stop the crime.
MPC allows abandonment is complicity is terminated and efforts are made to stop or
police is notified in a timely manner.
Conspiracy
Conspiracy is the crime of agreeing to commit crime. It is a separate and inchoate crime
AR requires an express or implied (concerted action) between qualified defendants. The
Gebardi rule protects victims. The Wharton rule precludes conspiracy if the act inherently
requires two people. Bilateral rule requires two guilty minds while the unilateral (MPC) requires
only one.
At common law an overt act was not needed. Some courts now require an act (legal or
not) by any conspirator carried out for the purpose of the conspiracy. Serious crimes in some
courts may not need an overt act.
MR requires knowledge of agreement w/ purpose for the crime to succeed. You do not
need to know of the attendant circumstances if they are not needed for the substantive crime.
Knowledge is sufficient for serious crimes.
Purpose can be inferred from stake in the venture, no legitimate use, or grossly
Under the Pinkerton Rule, there is automatic coconspirator liability for any crimes carried
out in furtherance of the conspiracy. This is rejected by the MPC. The coconspirator liability is
not retroactive.
There are several approaches to the scope of coconspirator liability. Under a wheel
conspiracy, multiple conspirators are working with one middleman to create multiple
conspiracies. Under a chain approach, one conspiracy is created by different roles along a
distribution line all to support one operation. Conspiracies with both aspects require courts to
look at whether groups knew of the extent of the operation and if they benefit from it. The
Braverman rule says that a conspiracy with multiple objectives is one conspiracy.
At common law, one could avoid further co-conspirator liability by withdrawing via full
and voluntary renunciation and notifying co-conspirators.
The MPC allows the same thing (but can also notify police). It also allows one to avoid
the original conspiracy charge by thwarting the crime.
Self Defense (SD)
SD is a type of necessity justifying the use of force when under unlawful attack. It
requires 1) honest and reasonable belief fear, 2) of death or serious bodily injury, 3) imminence,
4) no excessive force, 5) duty to retreat in some jurisdictions, and 6) not the initial aggressor.
Reasonable is a reasonable person from the defendant’s situation. Factors include
physical attributes of everyone, knowledge of the attacker, and prior experiences. MPC looks to
see if defendant reasonably believed if force was necessary.
MPC and other courts allow SD for BARKRM.
Imminence can be hear and now, reasonable, or inevitable. Reasonable is generally used
and is a reasonable person in the defendant’s situation. The MPC looks at if the defendant
reasonably believed it was imminent.
Only deadly force can be used against deadly force. Other jurisdictions and MPC allow
deadly force for BARKRM.
Duty to retreat was not required at common law. It only applies at the moment of the
attack, when deadly force is used by the defendant, and if defendant knows it is reasonably safe
to do so (does not apply if in one’s home, castle exception).
Defendant cannot be the initial aggressor. The initial aggressor is one who raises it to a
level of violence (as compared to an instigator).
Some courts allow an imperfect self defense to mitigate from murder to VM under EED
theory.
Defense of Others
Traditionally one stands in the shoes of the one in danger and can only use this defense if
the person under attack could use SD. Majority and modern courts allow this defense as long as
defendant was reasonable in believing force was required.
Defense of Property
Deadly force can never be used to defend property (except at early common law).
Citizens can only use deadly force to prevent dangerous felonies.
Law Enforcement
Police can never use deadly force to apprehend a suspect unless the suspect poses a threat
of significant harm to others or himself. They can use nondeadly force to apprehend a
misdemeanant.
Necessity
Necessity (choice of lesser evil defense) justifies a crime because it was the lesser of two
evils. It requires 1) choice of evils, 2) no apparent alternatives, 3) imminence, 4) lesser evil
chose, 5) not brought upon self, and 6) no contrary legislation.
There must be no lawful alternatives. Defendant also must surrender immediately upon
safety in prison escape cases.
Generally it must be here and now, though courts have relaxed it. Under MPC,
imminence is just a factor.
The lesser evil chosen requires an honest and reasonable belief. The harm avoided must
be greater than harm caused from society’s point of view. Life is worth more than property.
Majority of courts do not allow necessity for homicide. Some courts and MPC say that more
lives are worth more than less lives.
Under the MPC, necessity can be used if brought upon self but defendant is still culpable
for the original negligence or recklessness.
If necessity fails and still seems unfair, the only hope is jury nullification but prosecutors
will strongly argue against allowing this argument
Duress
Duress is an excuse for a crime committed under compulsion. Duress at common law
requires 1) threat of death or serious bodily injury, 2) imminence, 3) to defendant, 4) that a
person of ordinary fortitude and courage would not yield, 5) not brought upon self, and 6) not for
homicide.
Imminence requires here and now but some courts relaxed it.
Early common law required duress only to be to the defendant but later courts included
close relatives and family.
Duress under the MPC requires 1) any unlawful threat to anyone, 2) such that a person of
reasonable firmness in the defendant’s situation would not yield and 3) not brought upon self.
Imminence and type of harm are just factors on a sliding scale to determine reasonableness.
This is no more any imperfect duress defense.
Insanity
Insanity is a full defense and excuses a crime due to a mental status at the time of the
offense. The defendant also must be competent or sane to stand trial. He must able to consult
with his attorney and understand the proceedings against him.
Using the M’Naghten standard, 1) defendant is presumed sane at the time of the offense,
2) he requires a defect or disease of the mind (a legal concept), 3) and to not understand the
nature/quality of his acts or that they were wrong.
Mental defect includes any abnormal mental condition substantially affecting mental
processes and impairing control. Factors include clear symptoms, history, number qualifying,
sincere, stigma, and brought upon self.
Common law additions include the irresistible impulse test (police at the elbow), where
defendant is insane if he could not control himself even with a police at his elbow. The deific
decree test applies if God spoke to the defendant even though defendant knew his acts were
wrong and knew the nature of his acts.
Under the MPC, 1) and 2) are the same as M’Naghten above, 3) the defendant must lack
substantial capacity to appreciate the criminality and to not be able to conform to the law.
Appreciate is knowledge and emotional concern.
DC is a partial defense and allows experts to show that intent or MR was not formed due
to a lower mental status. Some courts reject this defense. Others allow it to reduce specific intent
crimes to general ones. Specific crime factors look at 1) mens rea required, 2) historical name,
and 3) if a lesser crime exists. Presence of a jurisdictional element may indicate it is a general
intent crime. The MPC allows a reduction from general intent to no crime.
Intoxication
Intoxication is alcohol or drug use that substantially affects the mind causing prostration
of mental faculties. The defense cannot be used if mens rea was already formed. Involuntary
intoxication is a full defense and can be from deceit, force, or pathological. Voluntary
intoxication was not allowed at common law and can reduce a specific intent crime down to
general. MPC uses the same approach.
Entrapment
Entrapment is a full defense and excuses a crime because of unfair government conduct
induce one to commit a crime. Anyone who works or cooperates with law enforcement suffices
as government official.
Under the Federal approach, the focus is on the predisposition of the defendant. Evidence
of any prior acts can brought. A motion to dismiss for outrageous police conduct can be
brought but this usually fails
Under the California approach, the focus is on conduct of the government and whether it
would cause a normal law abiding person to commit the crime.
Under the MPC, conduct of the government goes to the judge.
Rape
Death Penalty
Pros include history, deterrence of murders, incapacitation to prevent jail murders, and
retribution to protect the sanctity of life.
Cons include cheapening the value of life, no proven deterrence, life w/o parole
incapacitates the same, cannot correct for mistakes, costs more, and allows discrimintation.
Bifurcated trials with special jurors must be used. There are 8th and 14th amendment
limitations. There cannot be mandatory death penalties and guidelines about mitigating and
aggravating circumstances must be given. Government cannot execute minors and retarded
people.
Criminal Law Roadmap Hypos
Accomplice Liability Chapter
STATE (S) v. PETUNIA (P), KEVIN (K), NANCY (N), CLARK (C) and HANK (H)
The Bank Robbery
Conspiracy
Conspiracy is the crime of agreeing to commit another crime. It is a separate and inchoate
crime that punishes preparatory conduct.
Actus Reus (AR) required is an express or implied agreement between qualified
defendants. P and H agreed when called up by K and N. Their concerted action of driving to the
bank together also qualifies for the actus reus.
At common law an overt act was not needed. Some courts now require an act (legal or
not) by any conspirator carried out for the purpose of the crime. The drive to the nearby down
likely suffices. Moreover, an armed bank robbery is dangerous and some courts do not require an
overt act for serious crimes.
Mens rea (MR) requires knowledge of agreement with purpose for the crime to succeed.
P must have all knowingly agreed and wanted for the crime to succeed since they divided up the
jobs and all drove to the bank together.
Purpose can be inferred from stake in the venture, no illegitimate use, or grossly
disproportionate sales. They all had a stake in the venture since they would likely all split the
loot which they did at the end. H still had a stake, just not a full share.
Under the Pinkerton Rule, there is automatic coconspirator liability for any crimes carried
out in furtherance of the felony. A conspiracy begins with agreement and ends when it is over.
Since the original agreement was to “rob banks” (plural), the conspiracy would not end until
everyone has abandoned, thus there would be continuing conconspirator liability. This is rejected
by the MPC.
At common law, abandonment allowed one to prevent further co-conspirator liability via
true and voluntary renunciation and notifying coconspirators. Hank did not notify anyone and
simply walked off. Moreover, it was not likely a true and voluntary renunciation since he saw a
cop and saw it as a “perfect opportunity” to get out of the mess. Thus, Hank has no abandonment
defense.
On balance, P, K, N, and H are all culpable for conspiracy.
Attempt (for P)
crime that merges with the crime when complete. The crime is not complete because P never
took the money. The teller was giving it to her but no facts indicate she touched it.
The MR required is purpose. Under the MPC, purpose or belief suffices. Purpose is
desire or aim. P desired to rob a bank by agreeing to a conspiracy with three others. She divided
up roles for each to play and obtained a small toy pistol. She also drove to the bank and walked
in. Moreover, she personally wrote the holdup note. Thus, P had the purpose.
AR has several approaches. The first step is no longer used except in poison cases. The
last step was used at common law. The dangerous proximity test looks at what has been done and
what is left. P has joined a group, divided roles, obtained weapons, wrote the note, stepped into
the bank and gave the note to the teller. All that was left was to take the money. Overall, AR has
been established since a lot more has been done.
Using the unequivocality (res ispa loquitor) test, the act is looked in the abstract to show
if there is unequivocal intent. There’s no other reason to write a hold up note and go into a bank
except to rob it. Thus theirs is likely AR under this approach.
The MPC combines the previous two tests and requires a substantial act corroborative of
intent. P took the substantial act by writing the note, obtaining the gun and walking into the bank
with it, and given it to the teller, all acts suggesting she wanted to rob the bank.
Impossibility applies when defendant has taken the last step but circumstances prevent
the completion of the crime. S argues that P has taken the last step by giving the note to the teller
but the cop walking in made it impossible. Alternatively, P argues she never took the last step of
taking the money, and thus impossibility does not apply.
Abandonment was not allowed at common law. Some courts now require a full and
voluntary renunciation. P likely slipped out because the cop entered the bank, and thus did not
have a true renunciation because she did not want to get caught.
Accomplice Liability (N, K, H)

crime but rather a theory of culpability for the substantive offense. Common law distinctions
have been removed, and thus N (accessory before the fact), K and H (principals 2nd degree) all
are culpable for attempted bank robbery.
AR requires help. N helped by planning. N also acted by helping the rest avoid detection.
H helped as a look out. K helped by driving. These acts clearly helped P by avoiding detection
and allowing P to go through with the bank robbery. Moreover, help does not have to make a
difference. Thus H, even though he did not warn of the cop, and did not make a difference, he
still helped by being a lookout for the time up until the cop came.
MR requires knowingly help with purpose for the crime to succeed. They all must have
known they were helping since they actively planned it. Purpose can also be inferred from stake
in the venture and nexus. N specifically has the nexus since she told others what to do. The nexus
is also established since they all had a direct connection by planning and meeting up. They all
had a stake in the venture (see conspiracy above). Thus MR is established.
-MPC purpose of promoting or facilitating the commission of the crime
Abandonment was not allowed at common law. Some courts now allow it via a full and
voluntary renunciation and with efforts to stop the crime. H did not have a full and voluntary
renunciation (see above) and simply walked off. Thus he did not try to stop the crime. H defends
that he assumed the cop would stop the crime, but this is too passive.
MPC allows abandonment if complicity is terminated and efforts are made to stop the
crime or cops informed. H did not do anything, thus has no abandonment defense under the
MPC.
On balance, N, K, and H are culpable for accomplice.
Accomplice Liability (C)
Accomplice is defined above. C is considered a 2nd degree principal (or accomplice) and
may be culpable for the attempted bank robbery.
AR requires help. C helped by lending P a pen.
MR requires knowing help with purpose for the crime to succeed. He must have known
of P’s intentions since he saw the money sack and gun. Alternatively, he might have recognized it
as a small toy gun and not known. Moreover, he lacked purpose since he was just trying to be
nice and did not want the bank to be robbed. C also lacked a nexus since he never knew P before
and never saw P after that encounter. Moreover, he did not have a stake in the venture.
Some courts require only knowledge for serious crimes, which may apply in this case of
bank robbery. Others have a separate crime of criminal facilitation, which C may be culpable for
since he had knowledge.
Thus, C is not guilty of attempted bank robbery under an accomplice liability.
Car Accident
Conspiracy (K, N, H, P)
Under the Pinkerton Rule, there is automatic vicarious coconspirator liability for any
crime in furtherance of the conspiracy. The conspiracy likely did not end (see above), and thus
they were still leaving and escaping the bank robbery. Thus, K, N, H, and P would all be culpable
unless in a MPC jurisdiction (which rejects Pinkerton Rule).
H likely did not abandon (see above), and thus even though he is not in the escape car, he
is still culpable for the resulting car crash.
Thus, K, N, H, and P would be culpable for the resulting homicide under conspiracy
theory.
Homicide (P)
AR is established by driving. P likely had to step on the gas pedal with her foot.
Homicide is the unlawful killing of another human being. Murder 1 requires malice and
premeditation, and there is no indication of premeditation for murder 1 or intent for voluntary
manslaughter.
Murder 2
premeditation or heat of passion. Malice requires intent to kill (express malice), intent to cause
grave bodily harm, or gross recklessness (implied malice).
and the conduct to be gross. P consciously disregarded the risk since N indicated that she should
drive in a Bonnie and Clyde fashion and thus could be dangerous. Moreover, P has driven before
and knows driving faster increases the risk. The speed of 120 mph is a substantial and
unjustifiable risk since it is double the normal highway speed. P was going down a hill and thus
would be increasing speed and have thus less control, making it more of an unacceptable risk.
Gross under the Hand approach requires the magnitude of harm to outweigh the social
utility. The likelihood of harm was great since high speeds result in crashes. The type of harm
was also great since car crashes are often fatal. It doesn’t benefit society since no one else is
driving that fast. Alternatively, driving fast has social utility since it allows faster travel. The
alternative is driver slower, which may result in getting around slower. On balance the conduct is
likely gross in addition to reckless and thus P is culpable for murder 2.
IM requires mere recklessness (see above) and gross (see above) negligence. Negligence
requires the defendant should have known, and P must have known that driving so fast when
likely all other cars were half their speed was dangerous. Thus, P is culpable for IM.
One who operates a dangerous instrument negligently is automatically culpable for IM. A
car is likely a dangerous instrument and thus under this doctrine P is automatically culpable for
IM.
Causation
Causation requires actual (but for) and proximate (legal cause). But for P driving so fast,
the car accident victim would not have died. Proximate cause looks at foreseeability and
intervening causes. The result was foreseeable when a car drives so fast and there were no
intervening acts.
Thus causation is established and P is culpable for M2.
Accomplice (N, K)
Accomplice is defined above.

AR requires help. Mere presence is generally not enough without prior arrangement.
They likely did not plan ahead of time for P to drive since K suddenly decided he was tired.
Since K was merely enjoying the ride, he did not provide any help.
N, on the other hand, “exhorts Petunia to drive faster and run all the lights.” Words of
encourage suffice.
MR regarding negligence or recklessness requires a purpose to assist and negligence or
recklessness regarding the results. N had the purpose to assist since she gave words of
encouragement wanting P to drive faster and dangerously. K was simply sitting there, though he
might have purposely assisted P in driving but letting her drive in the first place. Alternatively, he
only did that because he was tired and only wanted her to drive, not drive recklessly. Both N and
K were negligent as to the results. They should have known not to be in the car and should have
told P not to drive so fast. The purpose can also be inferred by a stake in the venture of a nexus.
N and K both had a stake in the venture because they both wanted to leave the bank faster and
get away faster.
-MPC purpose of promoting or facilitating the commission of the crime
Under the reasonably foreseeable doctrine, defendants are culpable for any natural and
culpable consequences. It is foreseeable that one would speed away from a bank robbery to avoid
detection. On the other hand, N and K would want to separate the car accident and the bank
robbery. It wasn’t an escape since there was no cops chasing them and they were likely already
safe. Thus, N, and K would also be culpable of P’s reckless driving as a result. Moreover, under
this doctrine, H is culpable as well since he did not have an abandonment defense.
On balance, N but not K is culpable for the homicide under an accomplice liability.
Correction, N and K would be culpable.
Conspiracy Chapter
STATE (S) v. BILL (B), RAY (R), and JED (J)
Part I
Building the Bomb
Conspiracy (B and R)
Actus Reus (AR)
AR requires an express or implied agreement. The agreement was expressly done over
the phone. Moreover, their concerted action once R gives the bomb to B suggests agreement
(assuming B actually got his bomb from R).
Under the Gebardi rule, victims are protected. The law may protect minors, but R is close
to being 18 (since he’s 17), and looks older. Moreover, R is not really a victim. The Wharton
Rule does not apply since bomb making could take more than 2 people. The bilateral rule
requires 2 guilty minds, which applies here. This suffices for the unilateral rule (MPC) as well
since both can be guilty.
At common law an overt act was not required. Some courts now require an act (legal or
not) by any co-conspirator carried out for the conspiracy. R buying fertilizer suffices for this
overt act.
On balance, AR is established for B and R.
Mens Reus (MR)
MR requires knowledge of agreement with purpose for the crime to succeed. Purpose can
be inferred from stake in the venture, no legitimate use, or grossly disproportionate sales. B had
the knowledge of the agreement since he made the offer to R. He had “sworn” revenge and thus
had the purpose and aim to blow up the golden arches. B also had a stake in the venture, since he
gets a bomb as a result.
R also must have known of the agreement since he heard it over the phone. He had the
desire for the crime to succeed since he accepted the offer. He was “excited to join” since he
thought it will be neat to see the sign blowup. Moreover, R had a stake in the venture since he
would receive $500.
Generally, one does not need to know of the attendant circumstances if they are not
needed for the substantive crime. Thus, it did not matter whether R or B knew McDougals was a
national franchise or not.
Some jurisdictions only require knowledge for serious crimes. Bombing may be a serious
crime, and thus knowledge may be sufficient.
Thus, MR for B and R is established.
Co-conspirator Liability
Pinkerton Rule says there is automatic coconspirator liability for any crime in furtherance
of the conspiracy. This is not retroactive, thus R’s selling of firecrackers does not apply. R would
be culpable for the felony committed by B when he blows up the sign. It is certaintly foreseeable
that B would actually bomb the sign and bombing is certainty in furtherance of the felony since
that act of bombing was the felony planned.
The MPC rejects this doctrine, and thus there would be no co-conspirator liability for the
bombing of the franchise.
Thus, B and R are both guilty of conspiracy and the felony of bombing a national franchise.
Selling Fertilizer
Conspiracy
Conspiracy is defined above. The conspiracy does not need to be formed at the same
time. Thus, J can still join. He does not need to know of B.
AR
AR requires an express or implied agreement between qualified defendants. R may not be

a qualified defendant under Gebardi (see above). The Wharton rule precludes conspiracy when
the crime inherently requires 2 people. Selling fertilizer may qualify since there is always one
buyer and one seller for the transaction to occur.
Alternatively, it is possible to argue that two people can buy one thing, even though one
person is merely required to buy hand the money to the seller, even if the buyers pooled their
cash. The agreement is established when R offered cash for the fertilizer, which J likely handed it
to him.
If an overt act is required, and this is one conspiracy between R, J, and B, then the overt
act required has been established (see above).
MR
MR requires knowledge of agreement with purpose for the crime to succeed. J likely
knew he agreed since he consciously handed the fertilizer to R. J argues he did not know J was
making a bomb. This argument likely fails since R used a suitcase for the fertilizer, though it is
possible for people to carry fertilizer in suitcases even if it is weird. Moreover, the “How to build
a bomb” book suggests that R was building a bomb, though people can read books on the subject
for fun. Lastly, even with the “don’t ask, don’t tell policy,” willful blindness (ostrich defense)
suffices for knowledge. Thus, J deliberately not asking when he’s suspicious suffices for
knowledge.
Purpose can be inferred from stake in the venture, no legitimate use, and grossly
disproportionate sales. J had a stake in the venture since he gets R’s money. R’s stake is of course
the fertilizer. There is a legitimate use for fertilizer, since farmers can use it. However, only 40%
of it goes to farmers and this number is shrinking, thus his sales are grossly disproportionate,
suggesting purpose for the crime to succeed. Lastly, he opened his business in response to people
who wanted to blow stuff up.
Under certain jurisdictions, knowledge is sufficient for dangerous crimes. Selling
explosives may be considered dangerous and thus knowledge could be enough.
On balance, MR is established.
Pinkerton
Under Pinkerton, if it is just one conspiracy, then J would be culpable for the felony of
blowing up a the sign.
The scope of the conspiracy is likely a chain conspiracy. There is one conspiracy with
different roles along a distribution all for the same conspiracy. J is the seller for R to make the
bomb, and B is the final buyer to buy the bomb. Thus is one distribution line where everyone
benefits and thus there is likely one conspiracy.
Alternatively, this can be a wheel conspiracy with R as the middleman. However, B and J
have a common purpose, which is to sell fertilizer for bomb making, and thus the spokes would
be connected as one conspiracy.
Abandonment
At common law, one can withdraw and preclude further coconspirator liability via a full
and voluntary renunciation and notifying co-conspirators. J “contemplated” and felt remorse,
suggesting a true change of heart. However, he did not inform his co-conspirators, and would not
get an abandonment defense at common law.
The MPC allows the same as common law, but allows notification of police instead of co-
conspirators. J informed the BATF agent, which assuming is the authorities since they captured
ray, would suffice and thus J would no longer be culpable for the bombing felony.
MPC also allows one to avoid the original conspiracy charge if he thwarts the crime,
which J did not do. Though he tried by informing the authorities, this is insufficient.
Thus, J is also culpable for conspiracy but not the felony bombing charge.
Part II
Selling fertilizer to minors
Conspiracy
Conspiracy is defined above.
AR
AR requires an express or implied agreement b/w qualified defendants. The Gebardi rule
protects victims, and this statute clearly is designed to protect minors like R. Thus R would not
be a qualified defendant for conspiracy.
The bilateral rule requires two guilty minds. This statute makes it so that R is not a guilty
mind since R did not sell materials to minors and is protected under the law. Some courts may
view that R can be a guilty mind, just is protected under the law similar to diplomatic immunity.
In this approach there would be a conspiracy charge.
Some jurisdictions use the unilateral (MPC) and only require one guilty mind. In this
approach, J would be guilty of making the sale regardless.
On balance, AR is established but only for J and not for R.
MR
Same analysis as above
Pinkerton Rule
Since the transaction occurred between R and J, B is culpable since he is a co-conspirator.

The act was carried out in furtherance of the felony, since R had to buy fertilizer to make the
bomb B needed. Thus, B would also be culpable, in addition to B and J for selling the fertilizer to
minors. Scope of liability is discussed above.
On balance, only B and J are guilty of conspiracy of selling fertilizer to minors.

Self Defense Chapter
STATE (S) v. HOLLIS BROWN (HB)
Homicide of Lawyer
Self Defense
Self defense is a type of necessity that justifies use of force when under unlawful attack.
It requires 1) honest and reasonable fear, 2) of death of serious bodily injury, 3) imminence, 4) no
excessive force, 5) duty to retreat (some jurisdictions) and 6) not the initial aggressor
HB likely had an honest fear. The lawyer pulled out a 6 inch knife, which is certainly
enough to cause damage. Moreover, the lawyer was on his motorcycle, which can also hurt HB.
Alternatively, HB may not fear it at all a macho man “overweight” and likely taller (since he
called the lawyer shorty). HB may be bigger, but he is on foot against someone on a vehicle (He
“parked” his bike already). Overall his fear is likely reasonable.
-Since he called the group wimps and sissies, he was likely not actually afraid. However, this
was before the knife was pulled out.
Reasonable is looked at from the defendant’s point of view and looks at physical
attributes of everyone, knowledge of the attacker, and prior experiences. HB is likely much
bigger and looks tougher with his biker attire. Moreover, he’s big (overweight and taller)
compared the lawyer. The attacker had two weapons, his bike and his knife. Moreover, the
attacker could have thrown the knife, causing serious injury. Also, it doesn’t matter how much
bigger or taller someone is if deadly weapons are involved. Lastly, the phrase “you’re going to
die” with a pulled knife would likely cause a reasonable man to be afraid. Alternatively, swiss
army knives are small and not the sharpest knives around.
MPC looks to see if the defendant reasonably believed force was necessary, and when
threatened with two weapons, HB likely reasonably was.
On balance the fear was likely honest and reasonable.
Death of serious bodily injury was threatened. Knives are deadly weapons, and
motorcycles can easily cause serious damage as well.
Imminence can be here and now, reasonable, or inevitable. Courts generally use the
reasonable standard, looking at a reasonable person in the defendant’s situation. The lawyer was
likely right in front of him, holding out the knife right in front of him. This situation seems like
here and now and thus a reasonable person would see this as imminent.
The MPC looks to see if the defendant reasonably believed the threat was imminent, and
HB likely did since he saw the motorcycle and the knife threat right in front of his eyes.
Only deadly force can be used against deadly force. The knife and motorcycle are likely
deadly forces, and thus even if the beer bottle is deadly force, HB can use it.
At common law there was no duty to retreat. Duty to retreat only applies at the moment
of attack, when it is reasonable for the defendant to do so (unless in one’s abode), and when
using deadly force to defend. HB threw a beer bottle (likely not a broken one) and thus was not
using deadly force. Moreover, he likely could not retreat safety since the bike was blocking his
way. On the other hand it states “before he could leave,” suggesting he might be able to. He was
not surrounded and perhaps could have moved out of the way. HB defends that the knife could
have been thrown at him, or the lawyer could have chased him down on the bike, so he could not
retreat safety and had to stand his ground. Thus, there is likely no duty to retreat.
Lastly, HB cannot be the initial aggressor. HB is likely the initial instigator, since he
called the men “sissies and posers.” The initial aggressor is one who raises it to a level of
violence. The lawyer approached HB on his bike, and the lawyer “pulled out his…army knife.”
Thus the lawyer is the initial aggressor and not HB.
On balance, HB can assert self defense. Some courts may allow imperfect self defense,
which may mitigate HB’s charge from murder to manslaughter if he had a faulty self defense
claim.
Necessity
In determining the choice of evils, there must be a causal link between the action and the harm it
causes. If one’s actions cause a harm unrelated to the harm that the harm was trying to prevent,
then it is not the lesser evil.
Trying to blow up a computer to stop nuclear war, but the computer was for payroll. There is no
causal link and thus it was not the lesser evil.
If there is not imminence, the lesser evil may be to wait until it is more imminent.
Duress Chapter
STATE v. JOHNNIE JONES (JJ)
Bank Robbery and Felony Murder Charge
Duress
Duress is an excuse for a crime committed due to compulsion by another. At common law
it requires 1) threat of death or grave bodily harm, 2) imminence, 3) to defendant, 4) such that a
man of ordinary fortitude and courage would not yield, 5) not brought upon self, and 6) not for
homicide.
For 1), JJ was faced with a threat of death for the “next three passersby.” Alternatively
this might be a face threat. The fact that they’re going to “get it” might not mean death, though it
likely does.
Imminence requires here and now, though some courts have relaxed it. The robber had a
gun in his hand, but it was not directly pointed at JJ yet. Even courts that require here and now
will certain recognize the imminence since it would take less than a second to point that gun at
JJ.
At early common law the threat had to be the defendant, but later common law added
close family and relatives. The threat here is to complete strangers, so this will not apply.
An ordinary man of reasonable fortitude and courage would yield to gun threats. People
generally comply with a gun to their head. This is assuming the gun in the robber’s hand is real,
even though the one in JJ’s hand is not.
JJ likely did not bring this upon himself. Though he chose to drive cabs, he did not
choose to drive robbers who force him to rob banks.
The duress was for bank robbery so the homicide requirement does not apply. The duress
defense, however, will not apply for felony murder at all since that falls under homicide.
Moreover, if there is no duress for the underlying felony, then there is not a duress defense for
felony murder.
On balance, there is likely no duress defense at common law.
Under the MPC, duress can be 1) an unlawful threat to anyone, 2) such that a one of
reasonable firmness in the defendant’s situation who not yield, and 3) not brought upon self (see
above).
Any unlawful threat suffices. Thus, the threat by the robber’s gun (even if not real)
suffices. The threat can be to anyone, so strangers can be threatened as well.
The MPC is more subjective and thus JJ’s prior experience of being robbed can be taken
into account. Reasonable person who has been robbed 13 times would understand the dire
situation and yield to protect his own life. Moreover, he has been driving a cab for a year and has
enough experience, especially in a big city like New York, to know that robbers are potentially
serious in their threats.
On balance, there is likely a duress defense under the MPC. JJ may also have a defense to
felony murder since he likely has a defense to the underlying felony of bank robbery.
In some jurisdictions, courts allow imperfect duress when a fault duress defense exists,
and can perhaps get a mitigation from murder (or felony murder) down to one of manslaughter.
Courts are generally split whether duress can be applied to felony murder though.
Insanity Chapter
STATE (S) v. BOB (B)
Stealing
Insanity
Insanity excuses a crime due to the mental condition at the time of the crime. Defendant
also must be competent or sane at the time of trial. He must be able to consult with his attorney
and understand the proceedings against him. There is no indication that he is not and thus is
likely competent.
M’Naghten
The M’Naghten standard 1) presumes sane at the time of the offense, 2) a mental disease
or defect, 3) such that defendant did not understand the nature of his acts or that they were
wrong.
Mental disease or defect includes any abnormal mental condition substantially affecting
mental processes and impairing control. Factors include clear symptoms, history, number
qualifying, stigma, sincere, and bring upon self. There are symptoms of lack of sleep and eating
with headaches. Alternatively, these might not be clear since anyone can claim they can’t eat or
sleep and have headaches. There is no history of mental defect, though doctors have called his
condition similar to battle fatigue. The number of people qualifying is great, since many people
go to law school. The stigma is not likely bad but the symptoms can be fairly easily faked.
Moreover, Bob might have brought this upon himself by voluntarily going to law school and
taking certain classes. He might have not taken measures to relieve his stress or balance things
out. Alternatively, he might have chosen to law school but not expected such excessive pressure.
Overall, there is likely no mental disease or defect.
B stated that he “knew” he would get in trouble” and thus understood the nature of his
acts. Alternatively, he could have been in a hallucinatory state and knew he would get into
trouble because he was looking at someone else’s exam not eating it. He thought he was studying
the exam and thus did not understand the nature of his acts.
However, he said it is “hard to tell the difference between right and wrong,” suggesting
that he did not understand his acts were wrong. Morally wrong is legally wrong, and thus it
doesn’t really matter if B thought he was acting contrary to society or the legal laws.
Alternatively, S argues that he could have, since just because it was hard doesn’t mean he
couldn’t understand it.
Common Law additions include the irresistible impulse test (police at the elbow). B’s
statement that he “couldn’t help” himself suggest he could not have controlled no matter what. S
argues that this is only what he claims and might not be true. The deific decree does not apply
since he did not hear voices from God.
On balance, there is no insanity defense under this standard.
MPC
Under the MPC, 1) and 2) are same as M’Naghten above, 3) defendant must lack
substantial capacity to appreciate the criminality and conform to the law. B claims he lacked
substantial capacity since he had “battle fatique” and suffered from indignities and pressures of
law school. Appreciation requires knowledge and emotional concern. He said he “knew” that he
“would get into so much trouble,” suggesting he appreciated the criminality. Alternatively, he
might not known what he was doing at all. He perhaps did not know he was actually digested the
material when he was actually physical digesting papers. Moreover, he was unable to conform to
the law since he “couldn’t help” himself.
Overall, B has a much better chance under the MPC.
DC allows expert witness to be used to show an intent or mens rea was not formed due a
lower mental status. Some courts reject this defense and evidence of his mental status may not be
used.
Other courts allow it to reduce a specific intent crime down to a general one. Specific
intent crime indicia include 1) mens rea language, 2) theft, and 3) if a lesser crime exists. The
mens rea is knowledge and specifically says “with the specific intent.” However, there might not
be a lesser crime for it to drop down to. Thus, there might not be a DC defense.
Under the MPC, general intent crimes can drop down to no crime. Thus, if B could not
form the desire to permanently deprive the owner of the object, then he has a defense. He knew
he was taking an object since he specifically state that he “knew” he would get into trouble.
On balance, B might only have a DC defense under the MPC.
Hypo #2 (This is the Hypo we discussed during the review session)
STATE (S) v. BUFORD FELLOW (BF)
Attempted Murder
Insanity
Insanity excuses a crime due to the mental status at the time of the crime. Defendant must
also be competent or sane at the time of trial. He must be able to consult with his attorney and
understand the proceedings against him. There is no indication that he cannot do this.
M’Naghten
M’Naghten 1) presumes sanity at the time of the crime, 2) mental disease or defect, 3)
such that the defendant did not understand the nature of his acts or that they were wrong.
Mental disease or defect is a legal concept and is any abnormal mental condition
substantially affecting mental processes and impairing control. Factors include number
qualifying, history, clear symptoms, sincerity, stigma, and brought upon self. The number
qualifying can be great, since a lot of people can be on anti-depressants. BF had a history of
being “odd” but that is likely not an indication of a mental disease. There are symptoms of being
strange, talking to oneself, and likely depression (since he took anti-depressants), however these
might not likely be clear. It is easy to fake being weird or talking to oneself, or saying words that
make it sound like you’re in another dimension. The stigma is likely not bad, since people just
thinks he is weird and would not perpetuate stereotypes. Moreover, it could be brought upon
himself since he can reduce the effect of his meds by drinking. Thus, there is likely no mental
disease or defect.
BF asserts he did not understand what he was doing. His mind was likely hallucinating
since he thought he was in another dimension since “aliens” were trying to take him. He wanted
to go to the Star Trek club but ended up at a restaurant and thought he was at the Star Trek club
anyways. The words “no one is taking my place” suggest he might think he is under attack and
thus defending himself in a state of hallucination. Alternatively, he might have understood what
he was doing since grabbing a shotgun, loading it is a fairly complicated process. Moreover, he is
not always hallucinating and normally goes to work and gets a paycheck.
Moral wrong is legal wrong. BF likely knew they were wrong since even if he is
hallucinating, he thought he was defending himself and though knew shooting people was
wrong.
Overall, there is no insanity defense under this standard.
Common Law Additions

Common law additions include the irresistible impulse test (policeman at elbow), where
defendant is insane if he couldn’t control himself even when a cop is at his elbow. BF argues that
he could not control himself since he instinctively shot the first 3 people without hesitation. S
argues that he could have since he had the shotgun and waited a long time before using. The
deific decree test applies only if one is hearing voices from God, which does not apply unless
Spock is some higher being.
MPC
Under the MPC 1) and 2) are same as M’Naghten above, and 3) defendant must lack
substantial capacity to appreciate the criminality or to conform to the law (see irresistible
impulse above). BF lacked substantial capacity since he was hallucinating that he was in another
dimension. Appreciate requires knowledge and emotional concern. He did not have knowledge
of where he actually was and thus could not understand that he was shooting real human beings.
S argues that he had grabbed the shotgun for awhile before he went crazy, and moreover drank
the beer afterwards, the effects of which kick in after awhile.
On balance, BF has a greater chance of an insanity defense under the MPC.
DC is a partial defense allows experts to be used to show intent or mens rea was not
formed due to a lower mental capacity. Some courts reject this defense.
Other courts allow it to reduce a specific intent crime to a general one. Specific intent
crimes look at 1) mens rea, 2) historical name, and 3) if a lesser crime exists. The mes rea for
attempt is purpose, which is normally a specific intent crime, but there is no likely no lesser
crime. Thus, there would be no DC defense.
The MPC reduces even a general intent to no crime. Thus, BF had a lower mental status
due to his oddity and potential drug use and may have a DC defense.
Intoxication
Intoxication is drug or alcohol use that substantially affecting mental status causing
prostration of mental faculties. It cannot be used for liquid courage, and S argues he grabbed the
shotgun before drinking. Moreover, he saw the paycheck and flipped out before drinking.
Involuntary intoxication is a full defense and can be by deceit, force, or pathological. BF
argues a pathological response to the anti-depressants, but this is unlikely since he took it on a
“regular basis.” Moreover, it cannot be involuntary since he knew the effects of his medication
with alcohol.
Voluntary intoxication was not allowed at common law. It is allowed only if it reduces a
general intent crime down to a specific one (see above).
MPC uses the same approach.
On balance, there is no intoxication defense.
Question 1 and 2 from the last two hypos in Sample Tests packet
Question No. 1
STATE (S) v. MARIA (M)
Maria maybe culpable for theft but she is dead and cannot be prosecuted.
S v. TISHA (T)
Death of Maria
Actus Reus (AR)
AR requires a positive act of one’s volition. T grabbed the gun, and must have pulled the
trigger with her hand. Alternatively, her hand was “trembling” at the time and perhaps she did
not pull the trigger but was a spasm. A voluntary act under the MPC because it is not an
involuntary act (spasm, hypnosis, movement not of one’s will, unconscious). Here it could
potentially have been a spasm and thus an involuntary act.
Regarding omissions, there is no general duty to act. T has created a peril and no
indication is made that T helped M while she bled to death, which takes time. This is both a
positive act and an omission. Moreover, there may be a status relationship between a storeowner
and customer, but this relationship likely does not exist since M was not a customer but a thief.
Overall, AR is established.
Homicide
Murder 1
deliberate thought. T was likely angry at this moment since she is being robbed and “vowed to
herself” she would not be robbed.
Under the Carroll standard, purpose is enough and no time is too short. Purpose requires
desire or aim. T formed the premeditation the instant she grabbed the gun and until the girls
turned to walk away. She must have aimed the gun at the back of the head. The head is a small
target and a vulnerable spot compared to the rest of the body. She had the desire to kill them
because she did not want to get robbed. Also, the fact that she did not help M as she bled to death
suggests T wanted M to die.
Under the Anderson standard, preconceived design is also needed. Preconceived design
looks at manner, motive, and planning. T planned the killing by putting the gun under the
counter. The manner was one shot to the head, and she wanted to kill them to prevent the robbery
as motive. Alternatively, she did not plan this particular killing and simply put the gun there as
self defense. Moreover, the manner could have been accidental since it doesn’t matter where
bullets hit, they are still equally deadly.
-due to the tensions between the communities, she could have purposely put the gun there,
planning to use it to kill the next robber to rob her
On balance, there is likely no murder 1.
Murder 2
grave bodily harm, and gross recklessness (implied malice). T had the intent to kill since she was
being robbed and wanted to defend herself against her attacker who punched her in the face.
Moreover she wanted to protect her property as she “vowed” never to be robbed. Intent is also
satisfied since she targeted M’s head, a vulnerable location on the body. The use of the shotgun
suffices also for intent to cause grave bodily harm.
and the conduct to be gross. There is no indication that the shot was anything other than
intentional, and it is unlikely the killing was accidental, thus gross recklessness does not apply.
-this murder could have been accidental since her hand was trembling (perhaps from fear)
-thus shooting someone over a few groceries is likely not worth it (balancing approach)
On balance, murder 2 is established.

adequate provocation, and 3) inadequate cooling time.
Actual heat of passion requires sudden anger after provocation. It is very likely T was
angry since people generally get mad when people try to steal from them and when people punch
them in the face.
Legally adequate provocation has several approaches. Under the categorical approach, T
suffices due to extreme assault. M had punched her in the face.
Majority of courts use a reasonable person approach taking physical characteristics into
account like in Camplin. T (a woman) is smaller and is also outnumbered by two “large” girls. A
reasonable person would likely be provocated. Race may be a physical or emotional
characteristic, and some courts may take into account the racial tensions.
Some courts take into account the emotional aspects like in Cassassa. Thus, T’s prior
experience and racial tensions would be taken into account. Moreover, she is an immigrant and
may fear general people who are not immigrants. Thus, she has a better chance under this
standard.
Lack of cooling time requires the attack to follow immediately after provocation. T
grabbed the gun immediately after she was punched. Thus, there was no cooling time.
Under the MPC, no provocation is required, words suffice, and no cooling time is needed.
It requires defendant to be under extreme emotional distress (EED) and have a reasonable
excuse, reasonable being a person in the defendant’s situation. She was likely under EED since
she was being robbed at the moment. Moreover, defending one’s property and self is likely a
reasonable excuse. Thus, she has a better chance under MPC to mitigate from murder to
manslaughter.
On balance, T is likely guilty of VM.

IM requires mere reckless or gross negligence. There is strong indication of intent, so IM
does not likely apply. Moreover, a defendant who negligent uses a dangerous instrument and
death results may be guilty under the dangerous instrumentality doctrine. The gun is a dangerous
instrument, and since T should have known what guns do, she is automatically guilty of IM.
Causation
Causation requires actual (but for) or proximate (legal cause). Actual cause requires a link
in the chain. But for T shooting M, M would not have died.
Proximate cause looks at foreseeability and intervening causes. It is foreseeable that
shooting someone in the head would lead to death. Intervening causes look at foreseeability and
control and policy. T asserts that M was an intervening cause since she did not help. However, it
is foreseeable that others will not help when a gun goes off since it causes panic, and omissions
of others almost never break the chain. T had control still since M was in her restaurant and she
held the gun. Moreover, we would likely want to blame T since she actually shot M.
On balance, causation is established.
Self Defense
Self defense is a necessity justifies the use of force under unlawful attack. It requires 1)
honest and reasonable fear, 2) imminent, 3) threat of death or serious bodily injury, 4) no
excessive force, 5) duty to retreat in some jurisdictions, and 6) not the initial aggressor.
T likely had an honest fear since she was being robbed and was just punched.
Reasonableness looks at physical attributes of everyone, prior experiences, and knowledge of the
attacker. T was smaller and was facing two large girls. Moreover, they were of a different race,
and her prior experiences showed that people of that race had robbed her before. Moreover,
Russian immigrant store owners like her have been killed before during robberies. Thus, her
fears are likely reasonable.
Under the MPC, court looks at whether a reasonable person in the defendant’s situation
believed force was necessary. When facing two large girls (and you are a girl), and one of them
just punched you, it is reasonable to assume they might hurt you more to complete the robbery.
Imminence looks at here and now, reasonable, or inevitable. Courts generally use a
reasonable person in the defendant’s situation. The girls were right in front of T, and thus it was
here and now and a reasonable person would believe this is imminent due to the physical
distance.
-However the threat might not have been imminent since the girls had started to walk away
Under the MPC, it looks at whether a reasonable person in the defendant’s situation
would believe it is imminent, and a reasonable person would also due to the physical proximity.
Common law required a threat of death or serious bodily injury. T argues that punching is
serious bodily injury. S argues that one punch is not. Some courts allow self defense against
BARKRM, in which case robbery occurring here suffices.
There is likely excessive force. Deadly force can only be used against deadly force, and T
used a gun against a punch, which was not proportional. Some courts allow deadly force against
BARKRM, which may suffice here since a robbery occurred.
At common law there was no duty to retreat. It only applies now in some courts at the
moment of the attack, when using deadly force, and when defendant knows it is reasonable to do
so unless in one’s home. S argues that they were in T’s store, a place of business and could have
ran to the back where her home is. T argues that the store is considered the home since it is
connected to it.
The initial aggressor is one who raises it to a level of violence. Moreover, T may have
been the initial instigator since she asked to see their backpacks and tried to grab the backpack,
but M raised it to a level of violence by punching T.
On balance there is no self defense. Some courts may allow imperfect self defense on a
faulty self defense claim and mitigate from murder to VM.
Defense of Property
Deadly force can never be used to defend property. However, M herself was there, so she
can assert that she was also defending herself and not just property. One is allowed to use
moderate force to defend against property, which she did so by trying to “grab the backpack.”
Insanity
Insanity is a full defense excusing a crime due to one’s mental conduct at the time of the
crime.
M’Naghten
Under the M’Naghten standard, 1) defendant is presumed sane at the time of the crime, 2)
requires a mental disease or defect, and 3) defendant did not know the nature of his acts or that
they were wrong.
Mental disease or defect is an abnormal condition of the mind substantially altering
mental processes and impairing control. T did not have any clear symptoms other than amnesia.
She did not have a history. Amnesia can be easily faked. People likely did not bring it upon
themselves to be traumatized by robbery. There is likely no stigma against people who lose their
memories. On balance, she does not have a mental disease or defect.
T argues she did not understand the nature of her acts since she was hallucinating. Her
hands were trembling and thus she had no control. Moreover, she said “it was like a bad dream,”
suggesting she was in another state. S argues that she did understand the nature of her acts since
she had a reason to kill, took aim, and must have known she was killing since she has never had
any mental problems in the past. Moreover, S argues her statements are easily faked or she is
suffering from shock because she killed someone.
T asserts that she could not have known her acts were wrong if she were not truly
conscious and hallucinating. S asserts that she likely did since it is hard to get revenge on
someone if you didn’t understand the difference between right and wrong.
Common law additions include the irresistible impulse test (police at elbow). T argues
she could not have controlled herself even if she wanted to. S argues she could have if a police
was nearby since even if she doesn’t remember, she likely had enough control to aim a gun. The
Deific Decree test does not apply since T was not likely hearing voices.
On balance there is no insanity defense.
DC allows experts to show that intent or mens rea was never formed due to a lower
mental capacity. Some courts reject this.
Other courts allow it to reduce a specific intent crime to a general intent crime, which
thus can reduce her murder to manslaughter.
The MPC allows it to reduce a general intent crime to no crime, and thus experts may
even exculpate her if she never formed the intent.
STATE (S) v. ANA (A)
Robbery of Grocery Store
Conspiracy
Conspiracy is the crime of agreeing to another crime. Conspiracy is a separate and

inchoate crime that punishes preparatory conduct.
AR is established by implied or express agreement between qualified defendants. A and
M likely planned together. Moreover, their concerted action of going to the store together
suffices as an implied agreement. The Wharton Rule does not apply since robbery can happen
with more than two people.
An overt act was not required at common law. Some courts now require an act (legal or
not) by any conspirator carried out in furtherance of the conspiracy. A’s act of going to the store
suffices. This may not be needed for serious crime (robbery is BARKRM) and thus it is not
needed for robbery.
MR requires knowledge of agreement with purpose for the crime to succeed. A must have
known what she was doing since she specifically was threatened and even said “I don’t want a
felony” but then did go to the store with M. Moreover, she first said she didn’t want anything to
do with the plan.
Purpose can be inferred from stake in the venture, which is likely true since A would have
shared the loot. A defends that she did not have a stake and she only did it because she was
forced to (see duress below).
Under Pinkerton Rule, there is automatic co-conspirator liability for any crime in
furtherance of the felony. Though M is dead, A would still be culpable for the assault by M upon
T. It is foreseeable that they would have to subdue T somehow in order to escape with the loot if
they are caught. This is rejected by the MPC and A would not be culpable for the assault.
Abandonment applies with a full and voluntary renunciation. A asserts that she “did not
want anything to do with the plan.” However, this occurred before the agreement and does not
qualify.
Thus, A is also guilty of assault on T in addition to a charge of conspiracy for robbery.
Accomplice is causing or helping another commit a crime. It is not a separate crime but a
theory of culpability for the substantive crime, in this case robbery.
AR
AR is help. A entered the store and looks around to see if anyone is watching them. She is
likely the lookout and likely agreed before hand to help by being a look out. The fact that she is
there can scare T and help accomplish the crime due to higher numbers. Alternatively A defends
that she did not grab and put any objects in the backpack. Mere presence is generally not enough.
On balance AR is established.
MR
MR requires knowledge of help with purpose for the crime to succeed. A must have
known since she was there with A the entire time, and even planned it ahead of time. Purpose can
be inferred from stake in the venture or nexus. She likely had a state in the venture (see above).
Moreover, she has a nexus with M since they both planned the robbery.
Reasonably Foreseeable Doctrine
Defendant is culpable for any natural and probable consequences. Thus, a natural and
probably consequence is subduing T so they can easily escape. A would be culpable for M’s
assault on T. This is rejected by the MPC and would not apply.
Death of M
Homicide
Homicide is the unlawful killing of another human being. There is no indication that A
wanted M to die, though a stretch can be made that she did since M was forcing her to commit
robbery and she wanted to get away. Moreover, M dying would allow her to keep the loot all to
herself. Overall, they were likely jointly working together and thus murder 1 and voluntary
manslaughter does not apply.
AR
The AR is “runs from the store.” Regarding omissions there is no duty to help. A arguable
created the peril by committing the robbery with T. Moreover, she has a duty since they are both
joint companions on a common venture. Thus AR is like established.
Murder 2
Murder 2 (defined above) requires gross recklessness (there is no intent to kill). Gross
recklessness requires a conscious disregard of a substantial and unjustifiable risk and the conduct
to be gross. A had a conscious disregard since she must have heard and saw M go down once she
was shot. Moreover, this is a substantial and unjustifiable risk since people die from bleeding to
death when they’re shot.
Gross (under the Hand) approach requires the magnitude of harm to outweigh the social
utility. The harm was great, since death was involved and highly likely when one is shot. There
was no social utility since only M is benefitted by running off with the loot by herself. A defends
that the alternative would have been for her to stay and risk getting shot too. Thus she would be
harmed and there is a high chance T would take another shot. Thus, the conduct was likely not
gross and murder 2 would not apply.
IM
IM requires mere reckless and gross negligence. The conduct is reckless (see above) and
not gross (see above). Negligence requires the defendant should have known. A should have
known that M would have died from being shot. She should have known leaving M there would
give M a low chance of survival. Alternatively, she could have died immediately and there was
nothing A could do. Thus, A is likely guilty of IM.
Felony Murder (FM)
Any death during the commission of a felony is automatic (constructive) murder. A

committed the felony by agreeing to rob the store with a likely share of the loot (MR) and
walked into the store as a lookout (AR). All BARKRM is murder 1, and since robbery suffices, A
would be culpable for murder 1.
Inherently dangerous doctrine limits some of the least serious doctrines to only inherently
dangerous felonies. Robbery in the abstract is not dangerous, since there are many ways to take
things without anyone dying. Alternatively, S prefers to look at the robbery as committed. Since
someone died, it is dangerous as committed.
Merger doctrine requires an independent felony. Robbery has a separate purpose other
than to kill, and thus does not merge. Malice would not already have to be proved for robbery.
Death must also occur during the felony (it happened while still in the store) and in
furtherance of the felony. A argues that M dying does not help the felony at all and was not in
furtherance of the felony.
Under the agency theory, A is only culpable for the acts of co-felons. Since T was not a
co-felon, then A would not be culpable. The provocation act doctrine is an exception and allows
A to be culpable if an atmosphere of malice was created. M created the atmosphere of malice by
throwing the punch (which may cause grave bodily harm), and thus A would be culpable.
Under the proximate cause theory, A is culpable for any deaths that are the proximate
cause of their unlawful acts. See below for proximate cause.
Moreover, a cofelon dies. Some courts hold this death as justified. M assumed the risk of
death, her life was valued less, and her death was not in furtherance of the felony. Thus A is not
culpable for the death of M. Other courts view the death of M as a human being.
-it is arguable that the killing was not even in furtherance of the felony and Tisha did it out of her
own purposes
-M and A were already running away
Causation
Causation is defined above. But for A’s accompanying and helping M, M would not have
robbed the store. Alternatively, A might argue that M would have simply found someone else or
even gone alone and thus still have gotten shot at T.
Proximate cause looks at foreseeability and intervening acts. It is foreseeable that
someone would die during a dangerous felony like robbery. Moreover, the intervening act of T
shooting at A is also foreseeable since it is expected that store owners would defend their
property and their lives.
On balance, causation is likely established.
Duress
Duress excuses a crime due to compulsion by another. Duress at common law requires 1)
threat of death or serious bodily injury, 2) imminence, 3) to defendant, 4) that a reasonable man
would not yield, 5) not brought upon self, and 6) not for homicide.
The threat was vague. The fact that A might not like how M and her friends would treat
her family does not suggest death or serious bodily injury. Though gang members may usually
hurt people, this is not always true.
Imminence generally requires here and now, though some courts have relaxed it. The
threat was not immediate, since A’s family was likely not even around and likely safe at the
moment. A was also likely safe since M’s friends were not about to hurt her at the moment. M’s
friends were likely not even around.
Early common law required the threat to be the defendant, and the words “we’ll do to
you” might suggest a threat to A. Later common law added threats to family and close relatives,
and thus the threat to her family would suffice.
Reasonable is an ordinary man of reasonable fortitude and courage. A reasonable person
does not want to commit felonies but also not get into trouble.
The threat was likely not brought against A, since there is no indication A joined M’s
gang.
On balance there is no duress defense at common law. Imperfect defense is also no longer
used.
Duress – MPC
Duress under the MPC requires 1) any unlawful threat to anyone, 2) that a reasonable
person in defendant’s situation would not yield, and 3) not brought upon self (see above).
Imminence and type of harm are factors. The threat was certainly unlawful even if
vague.The MPC is more subjective and also take into account A’s knowledge of M’s gang and
their behavior. A may know whether M’s gang actually carries out their threats and how fast they
may do it and with what kind of harm. A reasonable person in A’s situation would likely yield.
Thus, A has a much greater chance under the MPC.
Necessity
Necessity (choice of lesser evils) justifies a act because it was the lesser of two evils. It
requires 1) choice of evils, 2) no apparent alternatives, 3) lesser evil chosen, 4) imminence (see
above), 5) not brought upon self (see above), and 6) no contrary legislation.
The evils included receiving a threat to her family and herself versus committing a
robbery.
Alternatives included going to the police. She likely had time between the plan and the
robbery (since 2 days separated the plan and the act) to go to the police.
The lesser evil was chosen, since lives are greater than property. Robbery concerns
property and her family (and herself) could have been hurt.
On balance, there is likely no necessity defense
Question No. 2
STATE (S) v. TOMMY (T)
Death of Senior Partner
Homicide
AR
AR is established by throwing the partner against the coat rack. Regarding omissions,
there is no general duty to act. T has created a peril by injuring the partner. This stretches the AR
since he “stepped over the body” and headed for lunch. Moreover, they may be in a status or
even contractual relationship as coworkers.
Murder 1 (Mens Rea)
Murder 1 requires premeditation in addition to malice. Premeditation requires a cool,

deliberate though. T “exploded” in anger while screaming at the partner. Thus, there is likely no
cool thought and no murder 1.
-Under Carroll, no time is too short for premeditation and it could have formed sometime after
the argument, for a single push towards the coat rack
Murder 2
Murder 2 requires malice and is a dumping ground when there is not enough for
premeditation or heat of passion. Malice requires intent to kill, intent to cause grave bodily harm,
and gross recklessness. There is likely no intent to kill. T was merely mad at his coworker and
since he only threw the partner against the coat rack and did not use any deadly weapons, he
likely did not have a purpose or desire to kill him.
-however he did say society would be better off without the partner
There is an intent to cause grave bodily harm. The partner had angered him by giving him
a lot of assignments and not allowed him to play video games, giving him a reason to be mad and
want to hurt the partner. Since it is his office, he likely knew where the coat rack was and
specifically threw the partner against it. Coat racks generally have blunt, non-sharp prongs to
hang coats over and thus may hurt. Moreover, throwing someone against a coat rack may cause
them to fall, but it certainly is hard to imagine how one would die from a coat rack. Lastly, the
fact that T did not help further adds evidence that he wanted the partner to be injured and not be
helped.
Gross reckless requires a conscious disregard of a substantial and unjustifiable risk and
the conduct to be gross. T conscious disregarded the risk of the partner dying since he must have
heard the partner beg for help. Moreover, he must have seen the partner was injured since he
walked over his body which was likely on the ground and unable to get up. Lastly, T must have
known the partner was in his office, and on the ground, thus making it harder for people to notice
that the partner was hurt.
Gross (under the Hand approach) requires the magnitude of harm to outweigh the risk.
The magnitude of harm was great, since someone who hits their head can suffer a bleed in the
brain and die. The alternative would be low, since all he has to do would be to call the hospital.
On the other hand, T argues that the probability of harm was small. He might not have seen any
bleeding, especially if it is internal bleeding. Moreover, the partner was able to get up and
making it to the reception area, suggesting other people could have helped him.
On balance, the conduct was likely not gross but reckless and would not suffice for
murder 2.
VM

adequate provocation, and 3) no cooling time.
Actual heat of passion requires sudden anger after provocation. The partner had just
informed him he could not play any more video games and T “exploded in anger” and
“screamed” right afterwords.
Legally adequate provocation has several approaches. Under a categorical approach, only
extreme assault, observed adultery, mutual combat, injured relative, and illegal arrest apply.
None of these apply since he was provoked by words, and words are generally insufficient.
Majority of courts use a reasonable person approach taking account physical
characteristics like in Camplin. T argues that being an associate is a physical aspect and thus a
reasonable person is possibly to be mad at their boss if their boss is overwhelming and unfair. S
argues that many people face tough bosses but do not hurt them. Moreover, being an associate is
a status and not a physical aspect of T’s body.
Some courts take into account emotional characteristics like in Cassassa. Thus, T’s stress
from all the work and weakness from staying up all night would be taken into account. His
emotional instability would be taken into account, and a reasonable person may crack and hurt
someone. T has a much greater chance under this standard.
Inadequate cooling time requires the act to immediately follow from provocation. T and
the partner yelled back and forth and thus there was time between when the partner first
provoked T with the no video game news. T argues that the anger was long smoldering since he
was mad the entire time up until the physical confrontation.
-cooling can be argued to have occurred after the attack while T was getting lunch, and the
omission is dragged out longer, if he cooled down and wanted the partner to die during this time,
there may be enough for 1st degree murder
Under the MPC, no provocation is needed, words may suffice, and no cooling time is
needed either. Defendant must subjectively be under EED and have a reasonable excuse. T was
subjectively under distress due to staying up all night, working hard, on the amphetamines, and
being stressed. Reasonableness looks at a reasonable person in the defendant’s situation. Having
too much stress and being pushed too far by one’s boss (and being on drugs) is a reasonable
excuse for one to snap. Others say that this is not enough. A lot of people go under a lot of stress
and do not strike at their boss.
On balance, T is likely culpable for VM.
IM
IM requires mere recklessness or gross negligence. Recklessness and gross conduct are
established (see above). Negligence requires that the defendant should have known. T should
have known that leaving the defendant there would lead to death. On the other hand, T argues he
should not have known. If there were no signs of bleeding and this was a public area, it is
unlikely T would have died. He was hit against a coat rack and people generally do not die from
coat racks.
A defendant who negligently uses a dangerous instrument and death occurs, he is
automatically culpable for IM. If the coat rack is a dangerous instrument (unlikely since it is
blunt), then T is automatically culpable for IM.
On balance IM is established.
Causation
Causation is defined above. But for T shoving the partner, he would not have hit his head.
It is certainly foreseeable that one who hits their head could suffer serious injury and die.
T argues that there are intervening causes, such as other associates not helping, especially since T
was in the reception area. Alternatively, third party omissions of others generally do not break
the chain. Moreover, T had control of the situation until he left, and courts would blame him
since he pushed the partner to begin with.
Thus, causation is likely established.
Self Defense
Self defense is a necessity justifying the use of force when faced with an unlawful threat.
It requires 1) honest and reasonable fear, 2) death of serious bodily injury, 3) imminence, 4) no
excessive force, and 5) duty to retreat in some jurisdictions, and 6) not the initial aggressor.
T likely did not have a honest fear. He was more angry than afraid at the moment.
Alternatively, T was afraid because his video game privileges would have been canceled by the
partner.
Reasonableness looks at a reasonable person in the defendant’s situation, taking account
into factors of physical attributes of everyone, prior experiences, and knowledge of the attacker.
The only movement of the partner was “marching” towards him. There is no indication the
partner was carrying the partner. Moreover, if being an associate against one’s boss counts as a
physical characteristics, a reasonable person would not be afraid of the partner or of his abilities
to remove video game privileges. The MPC looks to see if the defendant subjectively believed
use of force was reasonably necessary, and this would likely fail as well.
There was no threat of death or serious bodily injury since all the partner did was march
towards T.
The situation was imminent, since offices are not big and the partner was fairly close to T.
There can not be excessive force. The associate likely used no force, and thus T’s pushing
would excessive since he used his hands while all the associate did was march towards him.
Duty to retreat was not required at common law. Duty to retreat only applies at the
moment of the attack, if deadly force is being used, and if reasonable to do so unless in one’s
abode. T was not using deadly force. The coat rack was likely not suffice since it is more an
everyday objet than a weapon. T would argue that the office is like his home since he has stayed
up all night (perhaps often) and spends more time at the office than at home, and thus has no
duty to retreat. Even if S argues the office is not his home, T likely had nowhere to retreat to
since offices have only one door and T was likely near it and potentially blocking it as T had to
step over the body later to leave. Overall, there is likely no duty to retreat.
T was likely the initial aggressor. The partner had no presented any force and T was the
one who first pushed the partner.
On balance there is no self defense. Some courts allow imperfect self defense to mitigate
from murder to VM (under EED theory).
Insanity
Insanity is a full defense excusing behavior due to the mental status at the time of the
crime.
M’Naghten
Under the M’Naghten standard, 1) defendant is presumed sane at the time of the offense,
2) must have a mental disease or defect (A LEGAL CONCEPT), and 3) must not understand the
nature and qualify of his acts or that they were wrong.
Mental disease or defect is any abnormal mental condition substantially affecting mental
processes and impairing control. Factors include history, clear symptoms, number qualifying,
sincere, stigma, and brought upon self. T had a history of being “bizarre,” but no indication is
made that he has thought counseling. Moreover, there are no symptoms other than just playing
video games. The number qualifying is too great, since a lot of people play video games. Anger
and love of video games is easy to fake, though the stigma is not that bad. Some people may look
down at those that play video games as nerds, and perpetuate nerdy stereotypes. T, however, can
bring this upon himself by choosing to play video games in the first place. On balance, there is
likely no mental defect.
Defendant must not understand the nature or quality of his acts. There are no indications
that T was hallucinating at the time or that he did not understand that his acts were wrong. Most
of the time T is just fine and can control himself even with all the work and stress. T asserts that
the fact that he just got a beer in the morning and played video games after hurting the partner
was strange, however this might be normal. There’s nothing truly insane about drinking in the
morning, and if T thought the partner was not dead, there is nothing wrong with getting some
food afterwards and playing video games.
Common law additions include irresistible impulse (police at the elbow) test. There is no
indication that T could not control himself. In fact, he likely could since he likely normally does
not strike out at his boss. The deific decree test may apply if one is hearing voices from God. T
asserts “a voice within” tells him that society would be better off without his boss, but it is not
clear if this is God. Thus, the facts are vague on this subject and T may have a deific decree
defense.
On balance, there is likely no insanity defense under the M’Naghten standard.
Under the MPC, 1) and 2) are the same as M’Naghten above, and 3) defendant must lack
substantial capacity to appreciate the criminality or to conform to the law (see above). T likely
lacked substantial capacity due to the staying up, the drugs, and the stress. He likely knew what
he was doing since he went to get beers to “calm his nerves,” suggesting his nerves were not
calm because something bad happened.
On balance, T has a greater chance under the MPC but still likely not enough for the
insanity defense.
DC allows expert witnesses to show intent or mens rea was not formed due to a lower
mental status. Some courts reject this.
Others allow it to reduce a specific intent crime to a general intent one. Specific intent
looks at 1) mens rea used, 2) historical name, 3) if a lesser crime exists. If T is guilty of murder,
it can reduce it down to manslaughter.
The MPC allows a reduction from general intent to no crime. If experts show that a
combination of the 6 amphetamines, combined with the stress and overwork caused a lower
mental status, T may have a full DC defense.
Intoxication
Intoxication is drug or alcohol use substantially affecting the mind causing prostration of
mental faculties. It cannot be used for liquid courage. Involuntary intoxication is a full defense,
but there is no indication of force, deceit, or pathological effects.
Voluntary intoxication was not allowed at common law and can reduce a specific intent
crime to a general one (see DC above). The 6 amphetamines qualify for drug use, and 6 is rather
excessive and likely enough to mess with one’s head. The beers T took will likely not make a
difference since they were taken after the attack. T argues that the beers had a bad drug
interaction and made the amphetamines worse. This prevented from T from helping the partner
during the time after he had the beers but while the partner was still dying.
On balance, there is likely an intoxication defense.
-however, he was able to work while on 6 amphetamines, showing his mind was lucid and the
drugs did not have a strong effect
STATE v. THE LAW FIRM AND OTHER ASSOCIATES AND PARTNERS
Death of the Senior Partner

There was no positive act by the other workers at the firm. Regarding omissions, there is
no general duty to act. The state argues the peril was created by giving everyone a lot of work
(like to T) and hiring the partner and T.
However, the partner died in the reception area and was ignored by everyone else,
including the secretaries and janitors. The state asserts that the firm and its workers had a status
and likely contractual duty to help its employees when it created its peril. However, this is a
stretch and there is likely no duty. Moreover, regarding causation, the state would want to blame
T even though the firm also had control of the partner’s life. This is especially true since it was a
senior partner and not just an associate, though every life has value.
S also asserts accomplice liability. The firm and its other associates could have helped T
with the death of the partner by turning the other way. However, there is likely no duty (see
above) and would not be culpable.
On balance, the firm and other associates will not be culpable for the death of the partner.
Criminal Law Exam Hypo 3
STATE (S) v. Al (A)
Conspiracy
Actus Reus (AR)
AR requires an express or implied agreement between qualified defendants. A may not

have orally agreed, but their concerted action of jumping into the car with A driving and CJ
riding suffices. Under the Wharton Rule, a conspiracy does not apply if it inherently requires two
people. A asserts that fleeing by car requires one driver and one passenger. However, this does
not likely apply since he can drive more people. Moreover, fleeing does not inherently require
two people.
An overt act was not required at common law. Some courts require an act by any
conspirator legal or not carried out for the purpose of the conspiracy. A’s beginning “to drive”
suffices. Some courts do not require an overt act for serious crimes, and helping a felon fee from
the government may suffice since force may likely be used. In these jurisdictions the overt act
won’t be needed.
Thus, AR is established.
Mens Rea (MR)
MR requires knowledge of agreement with purpose for the crime to succeed. A likely
knew what he implicitly agreed when he started driving. Moreover, he knew CJ was going to be
arrested since he heard about how CJ killed his wife. Purpose can also be inferred from stake in
the venture. Cj had proposed A a share of the money and thus A likely had the mens rea since he
continued to drive. A defends that he never actually accept the cash share. He was under threat
and had to drive whether he was given a share or not. Knowledge is sufficient in some courts for
serious crimes, and since fleeing is a felony, knowledge may be sufficient.
Thus, MR is likely established.
Pinkerton
Under Pinkerton Rule, there is automatic coconspirator culpability for any crimes carried
out in furtherance of the felony. This is not retroactive, and thus would not include CJ’s previous
murder of his wife. This is rejected by the MPC and thus A would not be guilty of any crimes by
Bob.
Scope of the conspiracy has several approaches. A asserts there is a wheel conspiracy
where multiple conspirators work with a middleman to create many conspiracies. A argues that
CJ is the middleman and that CJ and Bob (B) for a separate conspiracy. Alternatively, S argues
that it is a chain conspiracy. Both A and B had different roles in a distribution line working
together for the same operation of escaping from arrest.
Under the Braverman rule, one conspiracy with multiple objectives is one conspiracy.
Though the objectives were not made at the same time, the objective of driving slow and
escaping the police can be seen as one conspiracy. Thus, there is likely no separate charge for a
conspiracy to drive slow, but just a conspiracy to escape from the government.
Thus, since it is more likely a chain conspiracy, A and B’s crimes would include potential
homicide of one of the rooters, the felony for fleeing the government, misdemeanor for driving
slow, and misdemeanor for false information given to the police. This also includes the original
conspiracy charge. B, however, may have an abandonment defense (see below).
Misdemeanor of driving slow on a highway
AR is established by driving slow on the highly. A likely eased up on the gas pedal it
could go slower.
Since no mens rea is required, the default level is recklessness. However, this may be a
strict liability (S/L). S/L requires no mens rea and is rejected by the MPC. S/L looks at 1)
statutory language, 2) legislative intent, and 3) policy. The language has no mens rea. The
legislature likely intended the statute to protect other drivers from crashes resulting from slow
drivers. They may likely make an exception when there’s rooters and crowds along the side. S/L
indicia include public welfare and morality offenses, high prosecution burden (there’s likely no
evidence or video of people driving slow), large number ( a lot of people can drive slow), highly
regulated high risk industry (driving is highly regulated and has a high risk due to crashes), and
low penalties (it is a misdemeanor so jail time is less than one year). On balance, this is likely a
S/L crime, and thus A is guilty of Penal Code 48.
-he cannot drive slower unless traffic indicates otherwise, but there were no other cars on the
highway

crime but a theory of culpability for the substantive offense, in this case that of homicide, fleeing
arrest.
AR requires help. A helped by driving.
MR requires knowingly help with purpose for the crime to succeed. A likely knew he was
helping since he started driving as a result of the threat, and thus knew he was helping him even
if he didn’t want to. Purpose can also be inferred from nexus or stake in the venture (see above).
A and CJ had a nexus and connection as they were also best friends. S argues they had “vowed to
help each other no matter what.” Alternatively, A defends he did not have the purpose because he
repeated asked CJ if CJ wanted to surrender. Moreover, he drove slowly so the police could catch
up. Knowledge is sufficient some courts for serious crimes or for a separate crime of criminal
facilitation. Help a felon flee is considered dangerous and thus knowledge is sufficient.
Thus, A is culpable under accomplice theory for Penal Code 32.
-moreover A could be culpable as an accessory after the fact to the murder of CJ’s wife, CJ is
still in the escape process, but there are insufficient facts as regarding to whether CJ actually
committed his crime, though the gun he holds and his escape attempt suggest he did.
Homicide
Homicide is the unlawful killing of another human being. AR is established by driving.
Murder 1 and Voluntary Manslaughter
Murder 1 requires malice and premeditation. Voluntary Manslaughter also requires intent.
There is no indication of any intent, since the crowd “accidentally pushed” one of the rooters into
the path of the car.
Murder 2
Murder 2 requires malice and is a dumping ground where there is not enough for
premeditation or heat of passion. Malice is intent to kill (express malice), intent to cause grave
bodily harm, and gross recklessness (implied malice).
Gross recklessness requires a conscious disregard of a substantial and justifiable risk and
the conduct to be gross. A did not conscious disregard the risk. In fact, he drove slower because
of the crowd. He knew what was happened since he “tried to avoid” the harm. Thus, he was
conscious of the risk and took the risk into account and there is no recklessness.
Gross (under the Hand approach) requires the magnitude of harm to outweigh the social
utility. The probability of hitting the crowd was great, since they are by the highway. The
magnitude of harm was great, since a car at 35mph is still fast enough to likely kill. The
alternative would be simply to drive even slower. Alternatively, A argues that driving slower
would cause them to take longer to pass the crowd and thus increase the range of time for
someone to get hurt to be greater. The alternative would be for him to swerve into the crowd,
causing greater damage.
On balance, there is no recklessness but the conduct is gross. Thus there is no murder 2.
Involuntary Manslaughter requires mere recklessness or gross negligence. There is no

recklessness (see above) and the conduct is gross (see above). Negligence requires that the
defendant should have known. S argues that driving near a crowd on a highway is dangerous.
Alternatively, A argues that there is no way he should expect the crowd to push someone right in
his path. This is a strong argument, since people generally do not jump into the path of cars.
On balance there is no IM.
A defendant who negligently handles a dangerous instrument is automatically culpable

for IM if death results. Cars are likely dangerous instruments, but A was not negligent (see
above), thus this doctrine does not apply.
Felony Murder
Any death that occurs during the commission of a felony is automatic murder. A
committed the felony of Penal Code 32 under an accomplice theory (see above). All BARKRM
felonies are murder 1, others are murder 2. Since Penal Code 32 is not BARKRM, it would fall
under murder 2.
The inherently dangerous doctrine precludes some of the least dangerous felonies and FM
only qualify for inherently dangerous felonies. In the abstract, there are plenty of ways to help a
felon escape without killing anyone. Alternatively, a felon who just killed and is escaping with a
gun can be considered inherently dangerous in the abstract. S favors the as committed approach.
Since someone die, the felony is dangerous as committed.
The merger doctrine precludes some of the most serious felonies. The felony must have a
separate purpose other than to just kill. There is no malice (defined above) required for fleeing
and thus it would have to be proved separately. Therefore, the felony does not merge.
The felony must also be during the felony (it was while they’re still driving and thus
fleeing). It also has to be in furtherance of the felony. It does not help the fleeing by killing
someone. The impact likely slows the car down a bit and delays escape. Alternatively, by running
someone over, they get to continue fleeing. Otherwise they would have to stop.
The agency theory does not apply since the death occurred under the hands of A. Under a
proximate cause theory (see more below), defendant is culpable for any death that proximately
results from their unlawful acts.
On balance, A is culpable for murder 2 under the felony murder rule.
The unlawful act doctrine (or MM) states that any unlawful act not a felony resulting in
death is automatically IM. A committed the misdemeanor (see above) of Penal Code 48.
However, MM is limited to 1) dangerous crimes, 2) mala in se, and 3) proximate cause (see
below). Driving slower is dangerous a highway since other cars drive at much higher speeds can
easily run into a slower car. Alternatively, driving slower may be safer for some people,
especially if the circumstances make it safer to driver slower. Driving slow is a regulatory crime
and not a mala in se crime.
Thus, A is likely not guilty of IM under MM.
Causation
Causation requires actual (but for) and proximate (legal) cause. Actual cause requires a
link in the chain. But for A’s slow driving, the pedestrian might not have died. A asserts that if he
did not drive (and died because he was shot by CJ), CJ might also have driven slowly and hit the
pedestrian as he would have taken the same route, but this approach is speculative.
Proximate cause looks at foreseeability and intervening acts. It is foreseeable that you
might hit someone when there’s a huge crowd by a high speed highway. Intervening acts look at
foreseeability and control and policy. It is foreseeable that someone might end up on the high.
Alternatively, it is not foreseeable that someone would be pushed in front of the car by the crowd
(which seems to take a group effort). Moreover, A did not have control of the situation since the
guy was pushed in front of the car. Policy dictates that we would not want to blame him since
there was likely nothing he can do. Moreover, he already tried to drive slower to accommodate
the crowd.
On balance, causation is likely not established.
Duress
Duress excuses a crime due to compulsion by another. Duress requires at common law, 1)
threat of death or serious bodily injury, 2) imminence, 3) to defendant, 4) that a reasonable man
would yield, 5) not brought upon self, and 6) not for homicide (it was to drive).
Though someone died, the threat to A was to drive, and not to kill someone.
CJ “threatened to kill” A, thus this suffices for the threat of death.
Imminence requires here and now, though some jurisdictions have relaxed it. The threat
was immediate since CJ was right next to AJ. The distance between the driver and passenger seat
is very close. Moreover, the gun was in CJ’s hand. S may argue that the gun was not pointed at A
at the moment, but this can change in a split second and thus imminence is established.
A threat is made to the defendant. Later common law added relatives and close friends, in
which CJ threat to himself (as a best friend of A) may suffice.
Reasonableness looks at whether a man of ordinary fortitude and courage would yield.
Most people would yield when the guy right next to him has a gun.
S argues that A brought this upon himself by jumping into the car. Moreover he likely
knows his friend and may know what CJ is capable of. Moreover, he heard CJ killed his wife and
thus may try to run while armed.
Thus, there is likely no duress defense at common law. There is no longer an imperfect
duress defense, though some courts used to allow it to mitigate.
Duress – MPC
Under the MPC, duress requires 1) any unlawful act to anyone, 2) such that one of
reasonable firmness in the defendant’s situation would yield, and 3) not brought upon self (see
above).
The threat to kill CJ and A suffice. Imminence and type of harm are just factors on a
sliding scale. Since it is a threat to kill two people, a reasonable person in A’s situation would
likely yield.
Thus, A likely has a defense under the MPC for duress.
Necessity
Necessity (choice of lesser evils defense) justifies a crime because it was the lesser of
evils. It requires 1) choice of evils, 2) no apparent alternatives, 3) imminent (see above), 4) lesser
evil chosen, 5) not brought upon self (see above), and 6) no contrary legislation. There is likely
no specific legislation regarding such situation.
- the penal code might be contrary legislation, but it only focuses on the acts of the felon and not
someone who aids him or is forced to aid him
The choice of evils include driving CJ to the border or both A and CJ dying.
There are no lawful alternatives since CJ has the gun in his hand and made the threat to
kill.
The lesser harm chosen requires a subjective and reasonable belief. A subjectively
believed he had a choice, since the gun was there and threat was made. The harm avoided must
be great than the harm caused from the society’s point of view. Driving CJ causes likely no
property damage or kills anyone, while if he doesn’t lives are at stake. Society would likely agree
that lives are worth more than a ride to the border. Thus the lesser evil was chosen.
-however this is complicated by the fact that someone died, however they did not bank on this
and at the time the decision had been made, it would not foreseeable someone would die (though
S argues that it could be since this is an armed felon escaping)
On balance, A has a necessity defense.
STATE (S) v. BOB (B)
Conspiracy

AR is established by “agreed to do so.” This is express agreement by phone. The
Wharton Rule precludes conspiracy when something requires two people. B asserts that wiring
money inherently requires two people. S counters that it is possible to wire money to more than
one person and is not an act that inherently requires 2. Under the bilateral rule, two guilty minds
are required. Both B and CJ can be guilty and thus B also qualifies under the unilateral (MPC)
rule.
MR requires knowingly agree with purpose for the crime to succeed. B must have known
he agreed when he said the words “agree.” Jury would unlikely believe he said agree but didn’t
know it. Moreover, he had purpose for the crime to succeed since he also “vowed” to help CJ
and A out as best friends. Purpose can also be inferred from stake in the venture, grossly
disproportionate sales, or no legitimate use. No facts indicate a stake in the venture, but perhaps
as best friends, CJ would likely help out B in the future. Thus, there is an implied promise that B
would get something in return. In some courts, knowledge is sufficient and thus purpose is not
needed to establish MR.
Pinkerton culpability is analyzed above along with A.
Abandonment at common allows one to avoid further co-conspirator liability if one
makes a voluntary and full renunciation and notifies his co-conspirators. He did not notify
anyone, but did have a true change of heart since he “felt guilty.”
Under the MPC, allows one to avoid further co-conspirator liability if one makes a
voluntary and full renunciation and notifies his co-conspirators or the police. B notified the
police in this situation in a timely manner. Even though his directions were false, he had notified
them still and this likely suffices. Under the MPC one can also avoid the original conspiracy
charge if one thwarts the crime. B did not do this and thus is still culpable for conspiracy to help
CJ flee. B may be culpable for the misdemeanor to drive slow, assuming he abandoned after A
started driving slow.
-telling the cops is generally insufficient to avoid the original conspiracy charge, this act is too
passive even if the cops thwart the crime
Accomplice (Wiring Money)
Accomplice is defined above. AR is established by wiring money. B defends that this

does not make a difference since CJ would have finished escaping by then and is help after the
felony ends. S counters that the felony never ends since CJ is constantly escaping and the money
makes it easier for CJ to continuing escaping. Thus, the help does make the difference. Though
under the MPC, it doesn’t matter if help is actually capable of helping.
MR requires knowingly help with purpose for the crime to succeed. He must have known
he was helping since that’s what giving money does. Moreover, CJ asked him and they had
already vowed to help each other. Purpose is analyzed above (see conspiracy above).
Abandonment is not allowed at common law. Some jurisdictions allow it if there is a full
and voluntary renunciation with efforts to stop the crime. He had a true change of heart and made
efforts to stop the crime by calling the cops. He did not know he gave the wrong information,
and thus he made an honest effort, which likely suffices.
Under the MPC, abandonment is allowed is complicity is terminated and efforts made to
stop or cops notified. Again, he has done this and likely has an abandonment defense.
Accomplice (Giving police incorrect information)
AR is established by helping the escape by distracting the cops. However, he lacks the
MR since “unbeknownst to Bob” he gave them the wrong directions.
Misdemeanor of reporting false information to cops
First this is not a felony since B did not know (see above).
Since no mens rea is mentioned, the default mens rea is normally recklessness. However,
S/L also require no mens rea and is rejected by the MPC. S/L looks at 1) language of the statute,
2) legislative intent, and 3) policy. There is no mens rea listed and legislatures likely wanted
people to be extra careful in deciding whether to help the police.
-B had made a mistake of fact, and thus mistake of fact can negate his mens rea for a material
element, and this only applies to the knowingly part of the statute
-language of the statute also had knowingly in it to make it a felony, but specifically left it out for
the misdemeanor. This suggests it is likely intentional to make it a strict liability crime
S/L indicia include public welfare or morality offenses, large number of crimes, high
prosecution burden, low penalty, and high risk or highly regulated industry. The penalty is low
since it is a misdemeanor (under 1 year of jail). There is not a high burden since police will likely
have a record of the false information given. Notifying the police is not a high risk or highly
regulated industry. This is also not a public welfare offense since it only affects the police,
though the police does affect the public welfare. The number of crimes is likely low, since not
many people report false information to the police.
Thus, this is likely not a S/L crime and the MR required would be recklessness.
Recklessness requires a conscious disregard of a substantial and unjustifiable risk. B was clearly
not “conscious” since he didn’t know about it at all. Nor did he likely know there was a
substantial chance he could be wrong.
On balance, B is not guilty of Penal Code 522.
Attempt (for using a false name for international transaction laws)
Attempt is the crime of trying to commit a crime. It is a separate and inchoate crime that
merges with the actual crime when complete.
MR requires purpose, though MPC allows purpose or belief. B had the purpose to do so
because he had the desire to help out CJ by providing him money. He “agreed to do so” when CJ
asked him as there is likely no other reason to purposely use a false name.
AR has several approaches. The first step is not used except in poison cases. The last step
was used at common law. B had taken the last step already since he has already “wired the
money” under a false name. This automatically satisfies all the other tests.
Impossibility applies when the defendant has taken the last step but circumstances
is a defense. S asserts that the fact that a law did not exist makes it factual impossibility.
However, this is a case of true legal impossibility since B has violated a crime that does not exist.
Thus B has an impossibility defense.
Under the MPC, there is no impossibility defense. If the circumstances were as B
believed them to be, there would be a crime. If he believed the laws existed and they did, then a
crime would have resulted and B would be culpable for attempt. However, there is likely little
public danger in making such a transaction and thus he would have mitigation.
At common law there was no abandonment defense. However, some courts allow a full
and voluntary renunciation (see above). S argues that he abandoned a different crime and not the
one regarding international currency laws.
On balance, B is not culpable for attempt for violating international transaction laws due
to true legal impossibility.
Criminal Roadmap Hypo 4
STATE (S) v. BLUE (B)
Dumping Toxic Waste
Conspiracy
Conspiracy is the crime of agreeing to commit a crime. It is a separate and inchoate crime
Actus Reus (AR)
AR requires an express or implied agreement between qualified defendants. B “agrees to

steal” toxic chemicals. Under the bilateral rule, two guilty minds are required, both can be guilty
and thus the unilateral rule (MPC) qualifies for B as well. Moreover, their concerted action of
both showing up at the refinery after hours suffice to show an implied agreement. AR is thus
established.
Some jurisdictions require an overt act (not required at common law). It can be any act
(legal or not) carried out in furtherance of the conspiracy. B showing up at the factory likely
suffices. Some jurisdictions do not require overt acts for serious crimes, and dumping is likely a
serious crime since it kills 12% of the people, which is a lot. Thus, an overt act wouldn’t be
needed in these jurisdictions.
Mens Rea (MR)
MR requires knowing agree with purpose for the crime to succeed. Blue must khave
known since Hatem (H) not only asked him and threatened his pets. H also likely told B what he
was doing or B wouldn’t know to steal toxic chemicals. Alternatively, B asserts he didn’t know
since H could have never specifically said what he was doing with the chemicals.
Purpose is desire or aim. It can be inferred from stake in the venture. B likely had a stake
in the venture because his pet would not be poisoned as a result. Moreover, since H told him the
plot, he wouldn’t die from the poison either. Some courts require only knowledge for serious
crimes. Since this toxic dumping is a serious crime (see above), knowledge is sufficient in some
courts to establish MR.
Pinkerton Rule
Under Pinkerton, there us automatic coconspirator liability for any crimes carried out in
furtherance of the felony. The acts of H was foreseeable since he received the poison and would
likely hurt people with it even if B specifically didn’t know how H would do it. Thus, under this
theory, B may be culpable for the death of the boy that results.
This is rejected by the MPC and B would not be culpable for the death of the boy.
Abandonment
Abandonment at common allows one to avoid further co-conspirator culpability with full
and voluntary renunciation and informing one’s conconspirators. B went home and “tells no one”
and thus has no abandonment defense. He has a true change of heart since he “hates the
chemicals” and wants nothing to do with the plan.
-MPC and thwarting the crime (MUST STATE EVEN IF no act of thwarting)
On balance, B is culpable for the conspiracy to dump chemicals and the death of the boy.
Accomplice
Accomplice liability is helping or causing another to commit a crime. It is not a separate

crime but a theory of culpability for the substantive crime, in this case, of dumping chemicals.
AR requires help. He helps by stealing the chemicals and concealing them in a ice chest.
Finally he “gives” the chemicals to H.
MR requires knowledge of help with purpose for the crime to succeed (see above for
purpose). B must have had knowledge he was helping since H had specifically contacted him and
even threatened him if he didn’t help. Thus, he must have been virtually certain that he was
helping someone do something bad.
Under the reasonably foreseeable doctrine, defendant is culpable for the natural and
probably consequences. It is certainly foreseeable and a probably consequence that H would
dump the toxic in and kill someone. B would be culpable for the death of the boy. This is rejected
by the MPC and B would not be culpable.
Abandonment was not allowed at common law. Some courts allow a full and voluntary
renunciation with efforts to stop. He made no efforts since he just went “home.” Under the MPC,
abandonment is allowed if complicity is terminated and efforts were made to stop or police
notified. Again B did nothing and just went home.
Thus, he has no abandonment defense and is culpable for the toxic dumping and death of
the boy.
Theft at the Refinery
Robbery
B had the mens rea to steal the toxic chemicals since he purposely wanted to deprive the
owner of them to help H. The AR is established since he stole, concealed them, and then gave
them to H. Thus, B is guilty of robbery.
Homicide (death of Unreal)
AR
AR is established by going to the refinery and stealing the toxic chemicals. Also it is
established by the triggering of the alarm, which alerts the police. Moreover, if Unreal did not die
immediately, they have created a peril and thus have a duty by omission (or stretching the
positive act) to help Unreal, which they did not. Thus, AR is established.
MR
Murder 1 requires premeditation in addition to malice. Voluntary Manslaughter requires

heat of passion. There is no indication of intent. Moreover, Unreal is H’s friend and thus H would
not likely want him dead. He is not B’s friend, but since Unreal is helping out, B likely has no
intention of him dying.
Murder 2
or gross recklessness. There is no indication of intent (see above).
and the conduct to be gross. B likely consciously disregarded the risk by stealing a dangerous
chemical. However, he did not consciously disregard the substantial risk that police would come
and shoot at them. It is more likely that B did not realize the police would start shooting. S
argues that B did know this since police use guns and force in apprehending suspects, especially
suspects with dangerous chemicals. On balance, the conduct is not likely reckless.
Gross (under the Hand approach) requires the magnitude of harm to outweigh the risk.
The probability of police finding out is likely high, since there was an alarm, suggesting the
place had security. Moreover, the risk was high since police would respond vehemently since
they are using dangerous chemicals. Alternatively, B argues the probability of harm was low
since they were (assumingly) unarmed and thus police would not just fire shots at them. On
balance, the conduct is likely gross.
Since the conduct is gross but not reckless, there is no murder 2.
IM requires mere recklessness (see above) or gross (see above) negligence. Negligence
requires that defendant should have known. The defendant should have known (since he works
there) that there would be alarms and cops would come if triggered. B should have known that
cops would use force to deal with their stealing of dangerous chemicals.
On balance, B is culpable for IM
Felony Murder (FM)
Under FM, there is automatic (constructive) murder for any death that occurs during a
felony. All BARKRM is murder 1, rest are murder 2. Since B committed a robbery (see above),
this would qualify as murder 1.
FM is limited by the inherently dangerous doctrine, which precludes some of the least
serious crimes allowing only inherently dangerous ones. In the abstract, there are plenty of ways
of stealing chemicals without anyone getting hurt. S favors the as committed method, and since
someone died, the felony is dangerous as committed.
The merger doctrine precludes some of the most serious crimes. The felony must have an
independent purpose other than to kill. Malice does not need to be proved otherwise in order for
the felony to qualify. Robbery does not involve an intent to kill or cause grave bodily harm and
thus the felony does not merge.
FM is also limited to deaths during the felony. This occurred “while…leaving the
refinery” and thus suffices since felony ends at escape to safety.
The death, however, was not in furtherance of the felony since Unreal on B’s side.
Moreover, under the agency theory, he is only culpable for the acts of co-felons. The police shot
and killed Unreal, not B or H.
The provocation act doctrine likely does not apply since there is no indication that B or H
created an atmosphere of malice.
Under the proximate cause theory (see more below), defendants are culpable for any
death that result from their unlawful acts. Their unlawful act of stealing led to the police shooting
Unreal, and thus they would likely be culpable under this doctrine.
Causation
link in the chain. But for B stealing and triggering the alarm, the police would not have come and
shot Unreal.
Proximate cause looks at foreseeability and intervening causes. Since robbery is a
dangerous felony to begin with, it is foreseeable that someone would die or that police would
interefere. Intervening acts look at control and police and foreseeability. It was foreseeable that
police would come and try to stop them since they hold a dangerous chemical. Moreover, it is
foreseeable that police would use force. Though the police had the control, we generally do not
want to blame them.
The police conduct is also an intervening cause because police generally cannot use
deadly force to apprehend a suspect. On the other hand, they can if the suspect poses a serious
threat to others (or themselves). In this case, the chemicals do pose a threat to society, and thus
the police could use deadly force to apprehend them. This use of deadly force would not likely
break the chain.
Duress (common law)
Duress excuses a crime committed due to compulsion by another. Duress at common law
requires 1) threat of death of serious bodily injury, 2) imminence, 3) to defendant, 4) that a
reasonable person would yield, 5) not brought upon self, and 6) not for homicide.
The threat was not of death or serious bodily injury to anyone. B argues it was death to
his pets, but this will not likely suffice.
Courts generally required here and now but others have relaxed it. The situation was not
here and now since the pets were likely safe and would be for awhile until they’re poisoned.
The threat was not to a defendant or his close relatives/family. It was to his pets and thus
is not enough.
Reasonableness looks at whether a man of ordinary fortitude and courage would yield.
Most people care a lot about their pets and would yield to threat to save them. Alternatively, S
argues that people would not yield. People don’t commit felonies over the lives of their pets.
S also argues this was brought upon B himself because he made friends originally with H.
Moreover, someone died and thus the duress involved homicide. However, the threat was
not to kill someone. Someone died in the process. The original threat was merely to steal.
On balance, there is no self defense under common law. Courts no longer use imperfect
self defense either.
Duress (MPC)
Duress under MPC requires 1) unlawful threat to anyone, 2) that a person of reasonable
firmness in the defendant’s situation would not yield, and 3) not brought upon self (see above).
Type of harm and imminence are factors on a sliding scale. Since the type of harm was
merely to the pets and imminence was low, a reasonable person would likely not yield.
Moreover, the threats still has to be to someone, and pets are not people. B defends that he may
have had a lot of pets and cared dearly for them. Some people develop very close and intimate
relationships with their pets.
Thus, he likely does not have a duress defense under the MPC but has a better chance.
Necessity
Necessity justifies a crime because it is the lesser of two evils (lesser of two evils
defense). It requires 1) choice of evils, 2) no apparent alternatives, 3) imminence (see above), 4)
lesser evil chosen, 5) not brought upon self (see above) and 6) no contrary legislation.
Choice of evils are letting his pets die or stealing toxic chemicals.
There must be no unlawful alternatives. Since it is likely not imminent, B certainly can
wait until it is more imminent. He could have said no, then gone back to protect his pets or
notified the police.
The lesser evil chosen must be honest and reasonable. B likely honestly believed his pets
were worth more since they are lives (animal ones though) versus property (the chemicals). The
harm avoided must be greater than the harm caused from society’s view. Society may value
animal lives over property, but in this case the property can cause human lives to die. Thus, B did
not choose the lesser evil since the property involved would cause death (which it did).
Under the MPC, you can bring it upon yourself, but you would still be culpable for the
original negligence charge. B thus would be culpable of negligently making friends with an
ardent environmentalist.
There is also contrary legislation since stealing is illegal and courts have laws regarding
it.
On balance, there is no necessity defense.
STATE (S) v. HATEM (H)
Dumping Toxic Waste
Conspiracy
AR is established by H contacting B. His offer suffices since that shows he agrees too.
MR requires knowing agree with purpose for the crime to succeed. He must have known
since he devised the plot to begin. Purpose can be inferred by a stake in the venture, and he gets
the toxic chemicals and also to dump it in to complete his “radical tactic.” Some courts require
only knowledge for dangerous crimes, and obtaining dangerous chemicals then using them easily
suffices for that.
Under Pinkerton culpability, H would be culpable for the acts of B, and thus would be
culpable for robbery and the homicide of Unreal. Moreover, he also has the conspiracy charge.
-he did not have the purpose to kill and thus would not likely have a conspiracy to kill, just a
conspiracy to steal
Accomplice (to theft)
Accomplice liability is defined above.

AR requires help. H “stands guard” at the gate. Mere presence is not sufficient, but he has
agreed earlier likely to be the look out since he is being a guard. The help also does not have to
make a difference in this case, even if he didn’t report the cops coming or need to for that matter
due to the alarm.
MR requires knowingly help with purpose for the crime to succeed. He devised the entire
plot and thus had the purpose (see above). He also must have known since B likely told him the
plan. Knowledge is sufficient in some courts for serious crimes. Obtaining dangerous chemicals
then using them easily suffices for that.
Under the reasonably foreseeable doctrine, it is foreseeable that cops may come and use
force to stop them. Thus H is culpable for the death of Unreal under this theory as well.
Overall, H is culpable under accomplice liability for the robbery and the death of Unreal.
Homicide
AR
AR is established by going to the reservoir and pouring the chemicals into the water.
Since he has created a peril, he also has a duty by omission (or stretching out positive act). There
is no indication he tried to help anyone, and thus AR is established.
MR
Murder 1 requires premeditation in addition to malice. Voluntary Manslaughter requires

heat of passion. There is no indication of intent. H may be virtually certain that people will die,
this is not sufficient for purpose. He does not want people to die but just wants to hold a press
conference to alert people of the danger.
Murder 2
or gross recklessness. There is no indication of intent (see above).
and the conduct to be gross. B conscious disregarded a substantial risk since he “knows some
people may be killed.” It is a substantial and unjustifiable risk since death is involved. Moreover,
it is likely a lot of people. Thus, the conduct is reckless.
Gross requires (under the Hand balancing approach) the magnitude of harm to outweigh
the risk. The magnitude of harm is overwhelming. Twelve % of the local population is a lot of
people dying (unless there are only 12 people). Even still, death is considered a very big type of
harm. The probability of harm was great since H “knows” with virtual certainty. Moreover,
people dying generally are not beneficial. On the other hand, H asserts that his acts are needed to
save the planet, which has even more people. This is likely stretches since the cost of alternatives
are low and he can easily find other ways to alert the population.
On balance, the conduct is gross and reckless and thus H is culpable for murder 2.
-though he had a good motive, motive is generally irrelevant except at sentencing
IM
IM requires mere reckless and gross negligence. The conduct is reckless and gross (see
above). Negligence requires the defendant should have known. Not only should H know toxic
chemicals in the water reservoir will kill people, but he did. Thus H is culpable for IM.
Under the dangerous instrumentality doctrine, a defendant who negligently uses a
dangerous instrument and death results is automatically culpable for IM. Toxic chemicals like
count as dangerous instruments and thus H is culpable for IM.
-felony murder, though there would likely be a problem with merger since poison already
requires malice anyways and thus would merge
Causation
Causation is defined above. But for H dumping the chemicals into the water reservoir, the
boy would not have died.
Proximate cause looks at foreseeability and intervening acts. It is foreseeable that people
would die, since toxic chemicals kill people. The manner of death is generally not enough to
destroy culpability.
Intervening acts look at foreseeability and control and policy. The boy’s acts may not be
foreseeable, since not everyones fishes in a water reservoir. Moreover, even if the city stops
using them, people may take time to adjust and still go there for the water. People still used it for
fishing so it is foreseeable that they might eat the fish. H had control of the situation since he
dumped the water in there, knew about it and could have warned about it. Moreover, we would
not want to blame the boy and prefer the protect children.
Thus courts would want to blame H and causation is established.
-Under the doctrine of transferred intent, H would also be guilty of killing the boy
Attempt (to kill 12% of the local population)
crime that merges with the actual crime when complete.
MR requires purpose. H did not have the purpose since he did not want to kill anyone
(see above). Under the MPC, belief is sufficient and H did “know some people may be killed,”
and thus would be culpable under the MPC.
AR has several approaches. The first step is not used except in poison cases. The toxic
chemicals may be considered poison, and thus the first step may be applied in which AR is
established since he did pour the chemical in.
The last step was used at common law. H has taken the last step since he has poured the
toxic chemicals in. There’s nothing else he needs to do. Since he has taken the last step, this
suffices under all the other tests as well.
Impossibility occurs when defendants has taken the last step but circumstances prevent
completion of the crime. Factual impossibility is not a defense, legal impossibility is a defense. S
argues it was the fact that the city stopped using the reservoir to make it factual impossibility. H
defends that there is no law against dumping chemicals into water reservoirs (though there might
be). Hybrid cases look at dangerousness and who we want to blame. Using toxic chemicals is
very dangerous and we would likely want to blame H. He tried to kill a lot of people and should
be punished.
Under the MPC there is no impossibility defense. If the circumstances would have been
as the defendant believed, then there is attempt. If the city continued to use the reservoir, then H
would have been guilty. Since there is definitely public danger as toxic chemicals can hurt a lot
of people who end up fishing there, H has no mitigation.
On balance, H is guilty of attempted murder of 12% of the local population.
Necessity
Necessity justifies a crime because it is the lesser of two evils. Necessity requires 1)
choice of evils, 2) no apparent alternatives, 3) imminence, 4) lesser evil chosen, 5) not brought
upon self, and 6) no contrary legislation.
The choice of evils are kill 12% of the local population versus keeping the environment
green and saving the world.
There must be no lawful alternatives. H could have tried to rally support to overturn the
proposition. He could have held press conferences without people dying. He could have lobbied
government as well.
-he may be able to organize a protest
Imminence generally requires here and now, though some courts have relaxed it. The
situation is not immediate at all. Any damage to the environment generally takes time, and an
argument that damage was inevitable is insufficient. The “doom” H thinks of is environmental
doom and is likely very slow. Under the MPC, imminence is just a factor in reasonableness, and
thus it would not seem very reasonable since there is no imminence.
The lesser evil chosen must be honest and reasonable. H honestly believed that his
actions were “necessary to save the greater society from doom.” The harm avoided must be
greater than the harm caused. The harm caused is the loss of life, and this is greater than any
damage to the water reservoir or the environment. H asserts that the loss of environment also
damages lives and thus you cannot compare lives to lives (in majority). Under the MPC, more
lives is greater than less lives, and thus H’s argument that he’s saving the entire world over the
12% may work (but the situation is not imminent so it wouldn’t).
The harm was not brought upon to H himself. He likely did not want the environment to
die.
Unfortunately there is contrary legislation. The passing of Proposition 128 suggest that
society has already chosen the lesser evil.
On balance, there is no necessity defense. The only alternative would be jury nullification
out of sympathy. The prosecution would strongly argue against this argument. Moreover, it
wouldn’t happen even if it did since H tried to kill so many people.
Black Letters
Actus Reus (AR)
AR requires a positive act of one’s volition. Under the MPC, a positive act can be
established by anything that is not involuntary (spasm, unconscious, hypnosis, movement not of
one’s will)
Regarding omissions, there is no general duty to act. Creation of peril can be seen as
extending the positive act or omission.
Mens Rea (MR)
Purpose is desire or aim. Knowledge is substantial or virtually certain. Deliberate

ignorance, willful blindness (ostrich defense) also suffices. Reckless is a conscious disregard of a
substantial and unjustifiable risk. Negligence requires that the defendant should have known.
Strict liability requires no mens rea and is rejected by the MPC. Generally the default
level with no mens rea listed is recklessness. Thus, to determine if S/L applies, courts look at 1)
statutory language, 2) legislative intent, and 3) policy.
S/L indicia include public welfare or morality offenses, high prosecutor burden, low
penalties, highly regulated or high risk industry, large numbers.
Mistake of Fact
Mistake of fact is a defense if it negates the mens rea of a material element. What you
need to know is what makes your conduct wrong. Jurisdiction elements look at 1) statutory
language, 2) legislative intent, and 3) policy. One is strictly liable for the greater crime (lesser
for MPC)
Mistake of Law
Mistake of law or ignorance of the law is generally not a defense unless 1) mens rea
negated, 2) estoppel theories, 3) Lambert exception. Lambert requires notice, omission, and a
regulatory offense. Cultural defense is no defense.
Homicide
Murder 1
Murder 1 requires malice (see below) and premeditation.

Under the Carroll standard, purpose is enough and no time is too short for premeditation.
Under the Anderson standard, preconceived design and purpose is needed, which look at
motive, manner and planning.
Murder 2
and the conduct to be gross. Gross under the Hand approach requires the magnitude of harm
(probability/type of harm) to outweigh the utility (benefit to society, cost of alternatives).
Manslaughter is killing without malice. Voluntary manslaughter requires 1) actual heat of

passion, 2) legally adequate provocation, and 3) inadequate cooling time.
Under the categorical approach, only illegal arrest, mutual combat, extreme assault,
injured relative, observed adultery qualify. Words are generally insufficient.
Majority of courts use a reasonable person standard taking physical characteristics into
account like in Camplin.
Other courts take emotional characteristics into account like in Cassassa.
Inadequate cooling time require the act to follow immediately after provocation. The
exceptions are long smoldering and rekindling.
Under the MPC, no provocation is needed, cooling time is allowed, and words may
suffice. The defendant must subjectively be under extreme emotional distress (EED) and have a
reasonable excuse. Reasonable is someone in the defendant’s situation. The excuse cannot be
from his bad personality or idiosyncratic morality.
IM requires mere reckless or gross (criminal) negligence. Reckless and Gross are defined
above. Negligence require that the defendant should have known.
A defendant who causes death while negligently operating a dangerous instrument is
Felony Murder
Any death during the commission of a felony is automatic (constructive) murder. The
felony must be proved (AR + MR + circumstances). All BARKRM results in murder 1, all others
result in murder 2.
The inherently dangerous doctrine limits some of the least serious felonies and only the
inherently dangerous felonies qualify. This can be viewed in the abstract or as committed.
The merger doctrine precludes some of the most serious felonies. The felony must have
an independent purpose other than to kill. If malice had to be proved anyways then it merges.
The death must also occur during and in furtherance of the felony. Duration begins at
planning and ends at escape. Acts of co-felons must be in furtherance of the felony.
Under the agency theory, defendant is only culpable for acts of co-felons. The exception
is the provocation act doctrine, which holds defendants culpable for if he creates an atmosphere
of malice.
Under a proximate cause theory, defendant is culpable for any death that is a proximate
cause of his unlawful act.
If a co-felon dies, some courts look at his death as justified. The felon assumed the risk,
his life is valued less, and his death is not in furtherance of the felony. Others treat him as a
human being.
Misdemeanor Manslaughter
Under the misdemeanor manslaughter (unlawful act doctrine), any unlawful act not a
felony that results in death is automatic involuntary manslaughter. The misdemeanor must be
proved (AR + MR + circumstances). The doctrine is limited to 1) dangerous acts, 2) proximate
cause, and 3) mala in se.
Causation
Causation requires actual and proximate cause. Death must generally occur within a day
and a year. Actual (but for) cause requires a link in the chain.
Proximate (legal) cause looks at foreseeability and intervening acts.
Intervening acts look at foreseeability and control and policy (who we want to blame).
Attempt
For AR, the first step is not used except in poison cases. The last step was used at
common law. The dangerous proximity test looks what has been done and what is left over. The
unequivocality (res ispa loquitor) test looks in the abstract to see if there was unequivocal intent.
The MPC combines the previous two tests and requires a substantial step corroborative of intent.
MR requires purpose. MPC requires purpose or belief.
Impossibility occurs when defendant has taken the last step but circumstances prevent
defense. Hybrid cases look at dangerousness and who we want to blame.
Under the MPC there is no impossibility defense. If the circumstances would have been
defendant believed them to be, then there is attempt. If there is no public danger, then there can
be mitigation.
Abandonment was not allowed at common law. Some courts allow it with a full and
voluntary renunciation before the last step is taken.
Accomplice liability

crime but a theory of liability for the substantive crime. Common law distinctions have
generally been removed and now all accomplices are culpable for the same punishment except
accessory after the fact.
AR is established by helping. Mere presence is not enough. Words may suffice. Help
does not have to make a difference. Principal does not have to be aware. Help can be my
omission. The act does have to be capable of helping (rejected by MPC).
MR requires knowledge of helping with purpose for the crime to succeed. Purpose can be
inferred from stake in the venture or nexus. Do not need to know what the principal does not
need to know. Knowledge is sufficient for serious crimes in some courts. Knowledge is also
sufficient in some courts for criminal facilitation. Principal does not need to be convicted.
The MPC requires purpose to promote or facilitate the commission of the crime.
Negligence crimes require purpose to assist and negligence regarding the results. Under
the MPC, the accomplices only have to have the same MR as the principal.
S/L is rejected by the MPC. Courts generally still require purpose to assist.
The Reasonably Foreseeable Doctrine holds defendant culpable for all natural and
probable consequences but not for separate frolics. This is rejected by the MPC.
Abandonment was not allowed at common law. Some courts (MPC) allow it with a full
and voluntary renunciation with efforts made to prevent the crime.
Conspiracy
AR requires an express or implied agreement between qualified defendants. The Gebardi
rules protect victims. The Wharton rule precludes conspiracy is the crime inherently requires two
people. The bilateral rule requires two guilty minds and the unilateral rule (MPC) requires one.
An overt act is not required at common law. Some courts now require an act (legal or not)
by any coconspirator carried out for the purposes of the conspiracy. This may not be needed for
serious crimes.
MR requires knowledge of agreeing with purpose for the crime to succeed. Purpose can
be inferred from stake in the venture, no legitimate use, or grossly disproportionate sales.
Knowledge is sufficient for serious crimes. Defendant does not need to know the attendant
circumstances if they are not needed for the substantive crime.
Under Pinkerton liability, there is automatic coconspirator liability for any crimes carried
out for the purpose of the conspiracy. This is rejected by the MPC.
Under a wheel conspiracy, multiple conspirators are connected to one middleman to
create multiple conspiracies. Under a chain conspiracy, there is one conspiracy with different
roles a long a distribution line all working for one operation. Aspects of both wheel and chain
conspiracies lead courts to look at whether groups knew the extent of the conspiracy or benefited
from it. Braverman rule states that an agreement with multiple objectives is one conspiracy.
At common law, one can prevent further coconspirator liability with a full and voluntary
renunciation and notifying one’s coconspirators.
Under the MPC, one can prevent further coconspirator liability with a full and voluntary
renunciation and notifying one’s coconspirators or the police. In addition, if one thwarts the
crime, he can avoid the original conspiracy charge.
Self Defense
Self Defense is a type of necessity justifying the use of force when under unlawful attack.
It requires 1) honest and reasonable fear, 2) of death of serious bodily injury, 3) imminence, 4) no
excessive force, 5) duty to retreat (in some jurisdictions) and 6) not the initial aggressor.
Reasonableness looks at one in the defendant’s situation and takes into account the
physical attributes of everyone, knowledge of the attacker, and prior experiences. The MPC
looks to see if the defendant reasonably believed force was necessary.
Some courts (MPC) allow self defense for BARKRM .
Imminence can be here and now, reasonable, or inevitable. Courts generally use a
reasonable person in the defendants situation. MPC looks to see if the defendant reasonably
believed it was imminent.
Only deathly force can be used against deadly force. Some courts (MPC) allow deadly
force against BARKRM.
At common law there was no duty to retreat. Duty to retreat now only applies at the
moment of the attack, when deadly force is used by the defendant, and defendant knows it is
reasonable to safely retreat (unless in one’s home, castle exception).
The initial aggressor (versus instigator) is the one who raises it to a level of violence.
Some courts allow a fault self defense claim to mitigate to imperfect self defense (murder
to manslaughter) on an EED theory.
Defense of Others
Traditionally one stands in the shoes of others, but modern courts require one to be
reasonable.
Defense of Property
Deadly force cannot be used to defend property. At early common law you could use
deadly force for felonies. Moderate (non-deadly) force may be used. Some courts allow deadly
force to prevent dangerous felonies.
Law Enforcement
Police can use non-deadly force to apprehend a misdemeanant. Police cannot use deadly
force to apprehend a suspect unless the suspect poses a threat of danger to others or himself.
Necessity
Necessity (choice of lesser evils defense) justifies a crime because it is the lesser of 2
chosen, 5) not brought upon self, and 6) no contrary legislation.
There must be no lawful alternatives. Defendant must surrender immediately upon
reaching safety in prison escape cases.
Imminence is here and now, though some courts have relaxed it. Under the MPC
imminence is just a factor.
The lesser evil must honestly and reasonably chosen. Reasonably requires that the harm
avoided must be greater than the harm caused from a society’s point of view. Lives are worth
more than property. Majority of courts do not allow necessity for homicide. Some courts (MPC)
say that more lives is better than less lives.
Under MPC, necessity can be brought upon self but defendant would be liable for the
earlier negligence.
If necessity fails, the only alternative is jury nullification out of sympathy. The
prosecutor will strongly argue against allowing this argument.
Duress (common law)
Duress is an excuse for a crime committed under compulsion. Duress requires 1) threat of
death or serious bodily harm, 2) imminence, 3) to defendant, 4) that reasonable person would
yield, 5) not brought upon self, and 6) not for homicide.
Imminence requires here and now, though some courts have relaxed it.
Early common required the threat to the defendant, though later common law added close
family and friends.
Reasonableness is such that an man of ordinary fortitude and courage would yield.
Duress (MPC)
Duress requires 1) threat of unlawful force to anyone, 2) one of reasonable firmness in

the defendant’s situation would yield, and 3) not brought upon self. Imminence and type of
harm are factors on a sliding scale in determining reasonableness and the reasonableness
standard is more subjective.
There is no longer imperfect duress.
Insanity
Insanity is an excuse due to one’s mental condition at the time of the crime. The
defendant also must be competent to stand trial. He must be able to consult with his attorney and
understand the proceedings against him.
Under M’Naghten, 1) defendant is presumed sane at the time of the trial, and 2) requires
a mental disease of defect (a legal concept), 3) such that he does not understand the nature of his
acts or that they are wrong.
Mental disease of defect is a substantial altering mental processes and impairing
control.
Moral wrong is legal wrong
Common Law additions include the irresistible impulse test (policeman at the elbow).
Defendant is insane if he could not control himself even with a policeman at his elbow. The
deific decree applies if defendant was being commanded by God, even if he knew the nature of
of his acts and that they were wrong.
Under the MPC, 1) and 2) and same as M’Naghten above, 3) defendant must lack
substantial capacity to appreciate the criminality or to comfort the law. Appreciate is knowledge
and emotional concern.
Diminished Capacity
Diminished capacity allows the use of experts to show that intent or mens rea was not
formed due to a lower mental status. This is rejected in some states.
Other courts allow it to reduce a specific intent crime down to a general now. Specific
intent crimes look at 1) mens rea, 2) historical name, and 3) if a lesser crime exists. Existence of
a jurisdictional element may indicate it is more of a general intent crime.
The MPC allows it to reduce a general intent crime to no crime.
Intoxication
Intoxication is drug or alcohol use substantially impairs the mind causing prostration of
mental faculties. It cannot be used for liquid courage.
Involuntary intoxication is a full defense. It can be from deceit, force or pathology.
Voluntary intoxication is not a defense at common law. It can reduce a specific intent
crime to a general now (see above).
The MPC uses the same approach
Entrapment
Entrapment is a full defense excusing crimes because of unfair government conduct.

Anyone that works for or cooperates with the government suffices.
Under the federal standard, the focus is on predisposition of the defendant. Evidence of
his prior bad acts can be used. Defendant may bring an action for outrageous government
conduct, but this usually fails.
Under the California approach, the focus is on conduct of the government and whether it
would have caused an ordinary law abiding citizen to commit a crime.
Under the MPC, conduct of the government goes to the judge
Rape is the unlawful sexual intercourse without consent using fear, fraud, or force.
Death Penalty
Pros include incapacitation to prevent future murders, retribution to protect the sanctity of
life, deterrence to prevent future murders, and history. Cons include discrimination, decreasing
the value of life, cost, no proven deterrence, and cannot correct for errors.
Bifurcated trials are required with special jurors. Cannot have mandatory death penalties
and jurors must consider mitigating and aggravating circumstances. Cannot execute minors or
retarded.
Actus Reus (AR)
AR requires a positive act of one’s volition. Under the MPC, a positive act is established
by anything not involuntary (spasm, unconscious, hypnosis, movement not of one’s will).
Regarding omissions, there is no general duty to act. Exceptions include
statutory/status/assumed/contractual duty and creation of peril. Creation of peril can be seen as a
positive act or an omission.
Mens Reus (MR)
Purpose requires desire or aim. Knowledge requires practical or virtual certainty. Willful
blindness/ostrich defense/deliberate ignorance suffices. Reckless requires a conscious disregard
of a substantial and unjustifiable risk. Negligence requires the defendant should have known.
S/L requires no mens rea and is rejected by the MPC. The default level is recklessness
when no mens rea is listed. S/L thus looks at 1) language of the statute 2) legislative intent, 3)
policy.
S/L incidia include public welfare or morality offenses, high prosecution burden, large
numbers, low penalties, highly regulated or high risk industry.
Mistake of Fact
Mistake of fact is a defense if it negates the mens rea for a material element. What you
need to know is what makes your conduct wrong. Jurisdictional elements look at 1) language of
the statute 2) legislative intent, 3) policy. One is held for the greater crime at common law, and
lesser under MPC.
Mistake of Law
Mistake or ignorance of the law is generally not a defense. The exceptions include 1) no
mens rea, 2) estoppel theories, and 3) Lambert exception. Lambert requires omissions, regulatory
offenses, and notice.
Cultural defense is no defense.
Homicide
Murder 1
deliberate thought.
Under the Carroll approach, purpose and premeditation is needed. No time is too short to
form premeditation.
Under the Anderson approach, preconceived design in addition to purpose (see above) is
required. Preconceived design looks at motive, manner, and planning.
Murder 2
bodily harm, or gross recklessness (implied malice)
and the conduct to be gross.
Gross under the Hand balancing approach requires the magnitude of harm
(type/probability of harm) to outweigh the social utility (benefit to society/cost of alternatives).
Manslaughter is killing of another without malice. VM requires 1) actual heat of passion,

2) legally adequate provocation, and 3) no cooling time.
Actual heat of passion requires sudden anger after provocation.
Legally adequate provocation has several approaches. Words are generally insufficient.
Under the categorical approach only extreme assault, mutual combat, illegal arrest, observed
adultery, and injured relative suffice.
Majority of courts use the reasonable person and account for physical characteristics like
in Camplin.
Other courts take emotional characteristics into account like in Cassassa.
Inadequate cooling time requires the anger to follow immediately after provocation. The
exceptions include long smoldering and rekindling.
Under the MPC, no provocation is needed, cooling is allowed, and words sufficient. The
defendant must subjectively be under extreme emotional distress (EED) and have a reasonable
excuse. Reasonable is from the defendant’s point of view as he sees it. The excuse cannot be due
to the defendant’s bad personality of moral idiosyncracy.
IM requires mere recklessness or gross (criminal) negligence. Recklessness and gross are
discussed above. Negligence requires that the defendant should have known.
A defendant who causes death while negligently operating a dangerous instrument is

Felony Murder
Any death during the commission of a felony is automatic murder. The felony must be
proved. All BARKRM deaths is murder 1, and all others lead to murder 2.
The inherently dangerous doctrine limits the felony to only the most dangerous felonies
and precludes the least dangerous felonies. It can be viewed in the abstract or as committed.
The merger doctrine precludes some of the most serious felonies. The felony must have
an independent purpose other than to kill. If malice would have to be proved anyways, FM is not
required.
The death must also occur during and in furtherance of the felony. Duration begins at
planning and ends at escape.
Under the agency approach, the defendant is only culpable for the acts of cofelons.
The exception is the provocation act doctrine, which holds defendant culpable if he
Under the proximate cause approach, defendant is culpable for any deaths that
proximately resulted from his unlawful acts.
The exception is the death of a cofelon. A cofelon’s death is justified because he assumed
the risk, his life had a lower value, and his death was not in furtherance of the felony. Some
courts look at this differently and hold that he is a human being.
MM or the unlawful act doctrine says that any unlawful act not a felony resulting in death
is automatically IM. The misdemeanor must be proved. MM is limited to 1) proximate causes,
2) dangerous crimes, and 3) mala in se.
Causation
link in the chain. Death must generally occur within a day and a year.
Proximate cause looks at foreseeability and intervening causes. Intervening causes look at
foreseeability and control and policy.
Attempt
was used at common law. The dangerous proximity looks at what has been done and what is left
over. The unequivocality (res ispa loquitor) test looks in the abstract to see if there is unequivocal
intent. The MPC combines the last 2 approaches and requires a substantial step corroborative of
intent.
MR requires purpose. MPC allows purpose or belief.
defense. Hybrid cases look at dangerousness and who we want to blame.
Under the MPC there is no impossibility. If the circumstances were as the defendant
believed and there is a crime, then there is attempt. If there is no public danger, there can be
mitigation.
Abandonment was not allowed at common law. Some courts allow it with a full and
voluntary renunciation before the last step is taken.
Accomplice liability is helping another commit a crime. It is not a separate crime but a
theory of liability for the substantive crime. Common law distinctions have been removed and
now all accomplices are culpable for the same punishment except accessory after the fact.
AR requires help. Mere presence is not enough without prior agreement. Words can be
enough. Help does not have to make a difference. Principal does not have to be aware. Help can
be by omission. Act does have to be capable of helping (not under MPC, no attempted
complicity).
MR requires knowing help with purpose for the crime to succeed. Purpose is sufficient
for serious crimes in some courts. Others allow a separate crime of criminal facilitation and
require only knowledge. Defendant does not need to know what the principal does not need to
know. Principal does not need to be convicted.
Under the MPC, purpose to facilitate or promote the commission is sufficient.
Regarding negligent crimes, defendant must have purpose to assist and negligent to the
results.
Courts are generally split on S/L crimes. Purpose is generally needed. This is rejected by
the MPC.
Under the reasonable foreseeable doctrine, the defendant is culpable for all natural and
probable consequences. This is rejected by the MPC.
Abandonment was not allowed at common law. Some courts allow it if there is a full and
voluntary renunciation with efforts made to stop the crime.
Under MPC, abandonment is allowed if complicity is terminated and efforts are made to
stop the crime or the police are notified.
Conspiracy
AR requires an express or implied (concerted action) agreement between qualified
defendants. Gebardi rule protects victims. Wharton Rule precludes conspiracy if the crime
naturally requires 2 people. Bilateral rule requires 2 guilty minds while unilateral (MPC) only
requires 1.
An overt act is not required at common law. Some courts now require an act (legal or
not) by any coconspirator carried out for the purposes of the conspiracy. Other courts do not
require it for serious crimes.
MR requires knowingly agree with purpose for the crime to succeed. Defendant does not
need to know of attendant circumstances if they are not needed for the substantive offense.
Purpose can be inferred from stake in the venture, grossly disproportionate sales, or no
legitimate use.
Pinkerton Doctrine says there is automatic coconspirator liability for any crime carried
out in furtherance of the conspiracy. This is rejected by the MPC.
Under a wheel conspiracy, multiple conspirators are connected by one middleman to
create multiple conspiracies. There is one conspiracy if each conspirator has a vested interest to
keep the business alive as one common venture. Under a chain conspiracy, there is one
conspiracy with different roles along a distribution line all for one operation. Conspiracies with
both wheel and chain aspects require courts to look at whether groups knew the extent of the
conspiracy or benefited from it. The braverman rule says that an agreement with multiple
objectives is one conspiracy.
Abandonment at common law requires a full and voluntary renunciation and the
defendant to inform his coconspirators to avoid further coconspirator liability.
The MPC requires a full and voluntary renunciation and the defendant to inform his
coconspirators or the police to avoid further coconspirator liability. The MPC also allows one to
avoid the original conspiracy if he thwarts the crime.
Self Defense
Self defense is a type of necessity that justifies the use of force when under unlawful
attack. It requires 1) honest and reasonable fear, 2) of death of serious bodily injury, 3)
imminence, 4) no excessive force, 5) duty to retreat (some jurisdictions), and 6) not the initial
aggressor.
Reasonable is looked at one from the defendants situation and takes into account the
physical attributes of everyone, defendant’s prior experience, and knowledge of the attacker.
MPC looks at whether the defendant reasonably believed force was necessary.
Some courts (MPC) allow self defense against BARKRM.
Imminence can be here and now, reasonable, or inevitable. Reasonableness is a
reasonable person in the defendant’s situation. MPC looks to see if the defendant reasonably
believed the threat was imminent.
Deadly force can be only used against deadly force. Some courts (MPC) allow it for
BARKRM.
At common law, there was no duty to retreat. Duty to retreat only applies at the time of
the attack, when defendant is using deadly force, and the defendant knows it is reasonable to
safely retreat (unless in one’s home, castle exception).
The initial aggressor (versus instigator) is the one who raises it to a level of violence.
Some courts allow imperfect self defense for a fault self defense claim to mitigate from
murder to manslaughter under EED theory.
Defense of Others
Traditionally, defendant stands in the shoes of one under attack and can only assert the
defense if one being helped could use self defense. Majority of courts now only require that the
defendant was reasonable in believing force was necessary.
Defense of Property
Deadly force can never be used to defend against property. This was not true at common
law. Citizens can use moderate force to defend property. Some courts allow them to use deadly
force to defend against dangerous felonies.
Law Enforcement
Police can use nondeadly force to apprehend a misdemeanant. Police can not use deadly
force to apprehend a suspect unless the suspect poses a threat of harm to others or himself.
Necessity
Necessity (choice of evils defense) justifies a crime because it was the lesser of 2 evils. It
requires 1) choice of evils, 2) no apparent alternatives, 3) imminence, 4) lesser evil chosen, 5)
not brought upon self, and 6) no contrary legislation.
There cannot be any lawful alternatives. The defendant must surrender immediately upon
Imminence requires here and now, though some courts have relaxed it. The MPC looks at
imminence as a factor in reasonableness.
The lesser evil must be honestly and reasonably chosen. The harm avoided must be
greater than the harm caused from society’s point of view. Lives are worth more than property.
Majority of courts do not allow homicide for necessity. Some minority courts (MPC) say that
more lives is worth more than less lives.
Under the MPC, defendant can bring it upon himself but he is culpable for the original
negligence.
If necessity fails, the only other alternative is jury nullification out of sympathy. The
prosecutor will argue against allowing this argument.
Duress (common law)
Duress excuses a crime committed under compulsion by another. It requires 1) threat of

death or serious bodily injury, 2) imminence, 3) to defendant, 4) that a man of ordinary fortitude
and courage would yield, 5) not brought upon self, and 6) not for homicide.
Early common law required the threat to be to the defendant. Later common law courts
added family and close friends.
Duress (MPC)
Duress requires 1) unlawful threat to anyone, 2) that one of reasonable firmness in the
defendant’s situation will yield (can work against defendant), 3) not brought upon self (see
above).
Imminence and type of harm are factors on a sliding scale to determine reasonableness.
Insanity
Insanity excuses a crime due to the mental status at the time of the crime. The defendant
also must be competent or sane to stand trial. He must understand the proceedings against him
and be able to consult with his lawyer.
Under the M’Naghten standard 1) defendant is presumed sane at the time of trial, 2) has a
mental disease or defect (legal concept), 3) such that he does not understand the nature or quality
of his acts or that they are wrong.
A mental disease or defect (legal concept) is any mental abnormality substantial affecting
mental processes and impairing control. Factors include history, symptoms, number qualifying,
stigma, sincerity, and brought upon self.
Common law additions include the irresistible impulse (police at elbow) test. The
defendant is insane if he cannot control himself even with a police at his elbow. The deific decree
applies if the defendant is commanded by God even though he knows the nature of his acts and
that they are wrong.
Under the MPC, 1) and 2) are same as M’Naghten above, and 3) lacks substantial
capacity to appreciate the criminality or conform to the requirements of the law. Appreciate is
knowledge and emotional concern.
DC allows expert testimony to show that intent or mens rea was not formed due to a
lower mental status. Some courts reject this approach.
Other courts allow it to reduce a specific intent crime down to a general one. Specific
intent crime looks at 1) mens rea listed, 2) historical name, and 3) if a lesser crime exists. A
jurisdictional element may indicate it is a general intent crime.
The MPC allows a reduction from general intent to no crime.
Intoxication
Intoxication is alcohol or drug use that substantially impairs the mind causing prostration
of mental faculties. It cannot be used for liquid courage.
Involuntary intoxication is a full defense and can be from force, deceit, or pathology.
Voluntary intoxication was not allowed at common. Now it can reduce a specific intent
crime down to a general one (see above).
The MPC uses the same approach.
Entrapment
Entrapment is a full defense excusing a crime due to unfair government conduct inducing
one to commit the crime. Anyone who works for or cooperates with the government is sufficient.
Under the federal standard, the focus is on predisposition of the defendant. Any bad acts
of the defendant can be brought in. The defendant can also file a motion of dismissal for
outrageous government conduct but this almost always fails.
Under the California approach, the focus is on government conduct and if it could induce
a normally law abiding person to commit crime.
Under the MPC, conduct of the law enforcement goes to the judge.
Rape is unlawful sexual intercourse without consent by force, fear, or fraud.
Death Penalty
Pros include deterrence and incapacitation to prevent future murders, retribution to

protect the sanctity of life, and history.
Cons include no proven deterrence, life without parole can also incapacitate, cheapening
of human life, costs more, and allows discrimination.
Bifurcated trials must be given. There cannot be mandatory death penalties and the court
must allow mitigating or aggravating circumstances. The court cannot execute minors or retarded
people. Special jurors must be chosen.
Sample Tests
STATE (S) v. CALVIN CLINE (C)
Death of Armani (A)
Actus Reus (AR)
AR requires a positive of one’s volition. C “swerved” the car. He also “aimed his car
directly at” A. He pressed down on the gas pedal to drive over A. Under the MPC, a positive is
anything that is not involuntary (spasm, unconscious, hypnosis, movement not of one’s will). A
defends that his arm jerked reflexively and thus was not under his control. His arm flailed
naturally and instinctly as C leaned forward with “before Cline could think,” suggesting no
mental volition.
Regarding omissions, there is no general duty to help. C has created a peril by running A
over. This can be seen as a positive act or an omission. There is no indication that he made
efforts to help.
Homicide
Murder 1
deliberate thought.
Under the Carroll standard, purpose is enough. Purpose is desire or aim. No time is too
short to form premeditation. C could have formed premeditation the second A was thrown to the
payment and he was in the car. The “smile” suggests that he had a cool deliberate thought.
Smiling is generally not a sign of anger. C had purpose because he “aimed” his car “directly” at
A. Moreover, he had the purpose because to kill since he drove “as fast as he could.” Driving
faster generally results in greater injury, suggesting C wanted to kill. Moreover, A was accused of
killing C’s son. C may not believe his innocence.
Under the Anderson approach, purpose and preconceived design is required.
Preconceived design looks at motive, manner, and planning. The motive was to get revenge on
his son. He had a desire for revenge on a murderer. The manner was one quick car ride over A.
This suggests a cool, deliberate attempt rather than running him over many times. There is little
evidence of planning. C likely did not expect A to confront him. Moreover, he could not have
expected his arms to go flailing and A to be thrown to the pavement.
On balance, A would be culpable under the Carroll standard but not the Anderson
standard for murder 1.
Murder 2
grave bodily harm, or gross recklessness (implied malice)
C had the intent to kill since he “aimed” his car. A car is a dangerous weapon and due to a
car’s weight and speed, can severely injure a human, who is lighter and more fragile. C likely
knew the car was a deadly weapon and thus used it to kill C. Even if the initial motion of his
arms flailing threw A to the pavement, C had full control of his car afterwards. Moreover, the
failure to help A after A was run over suggests he wanted A to die. This intent to kill
automatically suffices for an intent to cause grave bodily harm. Lastly, even if C’s motive to rid
society of a murder is a likely a good motive, motive is generally irrelevant.
and the conduct to be gross. There was no indication of anything other than intent, and thus gross
recklessness does not apply.
On balance, A is culpable for murder 2.

Actual heat of passion requires sudden anger after provocation. C was in his car
“sobbing,” suggesting he was not likely angry. Thus, there is not likely heat of passion. A could
have provoked C again by opening C’s door and putting his hand on C. The words “bury the
hatchet” could be provocation and since C and A are likely enemies, suddenly cause C to be
angry. Moreover, his heart “pounded,” suggest blood was flowing and he was under actual heat
of passion.
Legally adequate provocation has several approaches. The categorical approach, inter
alia, requires extreme assault. A’s putting of his “large hand” on his shoulder is contact, but not
likely extreme assault. It’s not a punch or a slap, even if the words “bury the hatchet” was used.
Words are generally insufficient.
Majority of court use a reasonable person approach taking account physical
characteristics of the defendant like in Camplin. C is “pitifully small” compared to C, who also is
bigger and has a “large hand.” Moreover, C may be older since he has borne a son already. Thus,
a reasonable person who is facing a much larger person may be afraid, especially if they are not
friends. C will also assert that A’s status as a accused murder is a physical characteristic, while S
will defend that there’s no indication that A was actually guilty.
Some courts take emotional characteristics into account like in Cassassa. C’s sobbing,
trembling, and being “emotionally battered” would all be taken into account. C was thus likely in
a vulnerable and emotionally sensitive state, and A was rubbing it in. A reasonable person in C’s
situation would likely be afraid of a potential murderer, especially one who has made a threat of
“wait and see what happens to you” and “I came to bury the hatchet.” Moreover, A’s mentioning
of a hatchet suggest he is an axe murderer and C may be afraid of dying in a gruesome way.
Inadequate cooling time requires the anger to immediately follow provocation. C had
time to sit in his car which allowed him to cool down by crying. However, C argues his inner
anger was long smoldering. Moreover, it was rekindled when A came over and put his hand on
C’s shoulder. S argues that C could have cooled down in the moment A fell. C also could have
cooled down once he smiled.
Under the MPC, no provocation is needed, there can be cooling time, and words can be
sufficient. Defendant must subjectively be under extreme emotional distress (EED) and have a
reasonable excuse. C was likely under EED since he was “emotionally battered” and on mood
medications.
Reasonableness looks at one in the defendant’s situation as he sees it. C argues that a
reasonable person would want to take revenge the murder of his son. Moreover, a reasonable
person would be angry when that killer comes over and taunt them. S argues that the A was not
only the potential murderer, but came to repent by saying “bury the hatchet.” Moreover, C killed
due to his bad personality and idiosyncratic morality since his “life had changed dramatically.”
On balance, there is likely no voluntary manslaughter.
IM requires mere recklessness or gross negligence. There is no indication of anything

other than intent, and thus IM will not apply. Dangerous instrumentality applies if death occurs
when defendant is negligently using a dangerous instrument. Since a car likely qualifies, C
would be automatically culpable of IM.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for C’s hitting the gas
pedal, A would not have been run over and died. Death must occur within a day and a year, and
this likely all occurred in less than a day.
Proximate cause looks at foreseeability and intervening causes. It is foreseeable that one
who is hit or run over with a car at a fast speed will die. Cars are heavy objects made of metal
that can easily crush the softer tissue and bone of the human body.
Intervening causes look at foreseeability and control and policy. C argues that the
ambulance driver was an intervening cause. Generally medical malpractice is foreseeable,
however gross malpractice and intentional acts are not. The ambulance driver “intentionally
drove” slower, delaying A’s treatment. It is not foreseeable that he would intentionally interfere
with A’s treatment. S argues that the slow driving could have been for safety, since faster driving
could have made the injury worse. Moreover, there could have been traffic. The ambulance
driver drove slowly intentionally because there was cars in the way.
The ambulance driver certainly had control over the situation, but the courts would likely
want to blame C, even if they also blame A.
On balance, causation is likely established.
Self Defense
Self defense is a necessity justifies the use of force when under unlawful attack. It
requires a 1) honest and reasonable fear, 2) death of serious bodily injury, 3) imminence, 4) no
excessive force, 5) duty to retreat (some jurisdictions), and 6) not the initial aggressor.
C had an honest fear. MPC looks to see if a reasonable man in defendant’s situation
would realize force was necessary. A smaller man would likely be afraid of a bigger man and one
who is a potential axe murder “leans forward”. Reasonableness looks at reasonable person in the
defendant’s situation and takes into account physical attributes of everyone, knowledge of the
attacker, and prior experiences. C was smaller and knew A could have been an axe murderer, and
thus his fear was reasonable since A was so close to him and already said “now wait and see
what happens to you.” S argues that those words were a vague threat.
There was no threat of death or serious bodily injury. C merely put his hand on A’s
shoulder. There is no indication of a weapon.
There was no duty to retreat at common law. It only applies at the moment of the attack,
when using deadly force, and when it is reasonable to do so. C was not able to retreat when A
was right by him, but once A was on the ground, it was certainly reasonable to just drive away.
Thus C likely had a duty to retreat.
C was not the initial aggressor, since C first put his hand on him. However, initial
aggressor is one who raises it to a level of violence. The hand and leaning forward is not
violence, and thus A is not the initial aggressor and the car running A over was the first act of
violence.
Thus, there is likely no self defense, though some courts allow a mitigation from murder
to manslaughter under EED theory for imperfect self defense.
Defense of Others
Traditionally, defense of others only applies if the one being helped actually could use
self defense. No one was under imminent attack at the moment and thus C likely cannot assert
this defense. Majority of courts now only allow if the defendant was reasonable in believing
force was necessary. A reasonable person would not believe force was necessary since no one
was being attacked. Thus there is no defense of others.
Defense of Property
C cannot use deadly force to defend property (his car). Moreover, once A was on the
ground, his property was likely already safe and C cannot use moderate force, thus there is no
defense of property.
Insanity
Insanity is an excuse due to one’s mental status at the time of the crime. Defendant also
must be competent or sane to stand trial, and there is no indication that C cannot do this.
Under M’Naghten, 1) defendant is presumed sane at the time of the crime, 2) mental
disease of defect (legal concept), and 3) does not understand the nature of his acts or that they
were wrong.
Mental disease or defect requires an abnormal mental condition substantially affecting
mental processes and impairing control. Factors include history, symptoms, number qualifying,
stigma, sincere and brought upon self. C has a history of need mood medications and being
emotionally battered. Moreover, he has symptoms of not sleeping or eating and hearing voices.
The number of people who qualify can be great, since a lot of people don’t eat, sleep, or have
emotional issues. Moreover, a lot of people suffer deaths in the family. There is likely little
stigma associated, and his condition is likely sincere, and not likely brought upon himself since
he likely had nothing to do with his son’s death. Thus, there is likely no mental defect.
C also likely knew the nature of his acts. There is no indication that he was hallucinating.
In fact, he smiled as he killed his enemy, suggesting that was happy and knew what he was
doing.
Moral wrong is legal wrong. A likely knew what he was doing was wrong, since he likely
continued driving (to escape).
Common law additions include the irresistible impulse (police at the elbow) test. C
asserts he could not control himself. This is no indication that he could not control himself. The
deific decree only applies when one hears voices to God. The voices from his son likely do not
qualify.
Under the MPC, 1) and 2) are same as M’Naghten above, 3) defendant must lack
impulse above). C lacked substantial capacity due to his drugs, his mood, and him being
emotionally battered. Appreciate is knowledge plus emotional concern. He must have known
what he was doing since he smiled, suggesting he appreciated his acts.
On balance, C has no insanity defense.
DC allows experts to be used to show that defendants did not form the intent or mens rea
due to a lower mental status. Some courts rejected this approach.
Others allow it to reduce a specific intent crime to a general one. This may allow C to
mitigate from murder to manslaughter, since murder 1 is a specific intent crime requiring
purpose.
Under the MPC, courts can reduce a general intent crime to no crime. Thus, if experts
show DC lacked mental capacity, he may be exculpated.
Intoxication
Intoxication is alcohol or drug use substantially affecting the mind causing prostration of
mental faculties. It cannot be used for liquid courage. C was taking it continuously and thus
likely did not form the mens rea before the act of killing.
Involuntary intoxication is a full defense and can be pathological, from deceit, or from
force. There is no indication that his mood medications were involuntary.
Voluntary intoxication was not a defense at common law. It allows a reduction from a
specific intent crime to a general one (see above). A has been taking mood medications for
awhile and thus it likely did not cause prostration of mental faculties since he could think, cry,
understand the court decision, and even drive.
The MPC uses a similar approach.
On balance, there is likely no intoxication approach.
Part B
C would argue that the death penalty should not be enforced. The death penalty lowers
the value of life, is not a proven deterrent, life without parole also incapacitates, allows for
discrimination.
S argues that the death penalty is required to uphold the sanctity of life, to deter future
murders, history, and to incapacitate C from future murders.
A special bifurcated trial is needed. Jurors that only allow the death penalty under certain
circumstances are allowed. There cannot be mandatory death sentences and the state cannot
execute minors and insane people.
Aggravating and mitigating circumstances must be discussed. C would want his age, the
fact that his son died, his emotionally battered status, the fact that he only ran over A once, the
intervening ambulance conduct to be taken into account.
S would want to take into account the smile on his face, the brutality of the murder and
pain of being run over. Moreover, they would also want to assert that C was exculpated and
likely not guilty of his son’s death.
Question 2
STATE (S) v. CROMWELL (C)
Death of Sally
Conspiracy
Conspiracy is the crime of agreeing to another crime. It is a separate and inchoate crime
AR requires an express or implied agreement between qualified defendants. Krisha (K)
“agreed” to C’s plan. Moreover, their concerted actions of letting the tiger remain at their abode
suggest an agreement.
An overt act was not required at common law. Some courts require an act (legal or not)
by any coconspirator carried out for the purposes of the conspiracy. C likely bought the tiger to
his home, and this suffices for the overt act. In some courts, overt act is not needed for dangerous
crimes, and a baby tiger at the time is not likely dangerous.
MR requires knowledge of agreement with purpose for the crime to succeed. C and K
must have had knowledge of the plan since they discussed it many times. Moreover, C was likely
present when K told him of the agreement. Knowledge is sufficient in some courts for serious
crimes. Keeping 2 year old tigers (they could be vicious) may be considered a serious crime and
thus knowledge may be sufficient.
Purpose can be inferred by stake in the venture, grossly disproportionate sales, or no
legitimate use. K and C both had a stake in the venture since “intruders could steal their art
collection and assault” them at night. The tiger thus would protect both of them.
Pinkerton liability holds automatic coconspirator liability for any crimes in furtherance of
the conspiracy. This is rejected by the MPC. Thus, keeping the tiger at the home and protecting it
from intruders is in furtherance of the conspiracy. This includes protecting it from the girl scout,
and thus both K and C may be culpable for her death under a conspiracy theory in addition to the
misdemeanor or felony of keeping a tiger on the premises (see FM/MM below)
Accomplice
Accomplice is the crime of helping another commit a crime. It is not a separate crime but
a theory of liability for the substantive offense.
AR requires help. Both C and K helped each other by recruiting services of Dr. Gumby.
Moreover, they likely both helped raise the tiger and help keep it there by omission of not getting
rid of it.
MR requires knowing help with purpose of the crime to succeed. Both K and C must
know they are helping protect each other by keeping the tiger in their home since they agreed
upon it in advance. Purpose can be inferred from a stake in the venture (see above), or a nexus.
Both are connected to each other since they live in the same home and agreed to the plan
together.
Under the reasonably foreseeable doctrine, defendant is culpable for the natural and
probably consequences, which include the tiger protecting them from intruders as they hoped and
as they expected (from raising and training the tiger).
On balance, K and C are guilty of keeping wild animals and may be culpable for the
felony or misdemeanor (see below)
S/L
S/L applies when there is no mens rea and is rejected by the MPC. The default level of no
mens rea is recklessness. S/L looks at 1) language of statute, 2) legislative intent, and 3) policy.
The statute does not mention any mens rea at all, but does for the felony (gross disregard),
suggesting that the misdemeanor may be S/L. Moreover, legislators likely wanted this to be strict
liability since certain animals are very dangerous to the community and wanted to encourage
people not to bring them upon the land.
S/L indicia include public welfare offenses, large prosecution number, large numbers, low
penalties, and highly regulated high risk industry. There isn’t likely many cases of bringing
animals upon one’s land, since that is likely rare as most people get domesticated pets. No
penalty is mentioned, but misdemeanors are punished under a year. Zoos may be a highly
regulated and high risk industry. Dangerous animals do affect the public welfare since they can
cause fear in the community.
On balance, the misdemeanor is likely S/L and the felony is not (due to its larger penalty).
Keeping the Wild Animal
The felony requires wild animals not to be kept, and thus tigers qualify since it was once
of the animals listed. It was not authorized by law because C and R live in a residence home and
is not a zoo.
K and C has the AR to keep the wild animal. They likely gave it food, water, and shelter
and also kept it in an area where the tiger could not escape.
They had the MR to keep it there since they wanted protection and wanted to save an
endangered species. Moreover, the zoos were doing a terrible job and the police would not arrive
quickly enough, suggesting they wanted the tiger.
Thus, K and C are culpable for the misdemeanor under Section 22.
The felony requirement requires a gross disregard for the safety of others. Gross requires
(under the Hand approach) magnitude of harm to outweigh the social utility. The likely harm is
great, since tigers are generally dangers. Moreover, they are known and had a high chance of
attacking others. There is no social utility since it adds fear to the community. A much simpler
and less expensive alternative is to simply get a dog. On the other hand, C asserts that there is
utility in protecting himself and scaring away burglars (and thus reducing crime in the
community). Moreover, the alternative would be to let tigers die, which may not be a good
alternative. Lastly, the tiger was just a baby and thus the probability of harm might be lower,
especially since they were “taming” the tiger by raising it.
On balance the conduct is likely gross. They did also did not grossly disregard the safety
of others since they kept the tiger well fed (it weighed 300 pounds which is probably a lot), and
inside the home. S argues they disregarded it since it was not on a leash, nor fenced, nor trained
not to attack people. Overall, C and K may be culpable for the felony.
Mistake of Law
1) negating mens rea, 2) estoppel theories, and 3) Lambert exception.
The statute requirement it to be unauthorized by the law. C and K claimed they were
unaware” of the animal regulation. Thus, they did not know their acts were unauthorized by law
and thus did not have a mistake of law defense. S counters that the statute did not require that
they know their acts were unauthorized by the law because it was a strict liability offense. C
would of course prefer the statute defaulted to recklessness.
Moreover, C asserts he called the National Zoological Society. However, this is unlikely
an official interpretation and thus does not suffice.
On balance there is no mistake of fact defense.
Death of Sally
AR
AR is established by a positive act of one’s volition. Both C had brought the tiger into his
home and raised it there. He likely gave it food, water, and shelter. Moreover, they kept the tiger
there simply by not letting it run away or giving it away.
Regarding omissions, there is no general duty to help. Once the tiger hurt Sally (S), there
is no indication they tried to help.
MR (homicide)
There is no indication of anything other than intent, thus murder 1 and voluntary
manslaughter does not apply. C and K likely did not know S before and had no indication of
having their tiger kill an innocent girl scout.
Murder 2
Murder 2 (defined above) requires gross recklessness. The conduct is likely gross (see
above). Recklessness requires a conscious disregard of a substantial and unjustifiable risk. C and
K likely consciously disregarded the risk since they must have known tigers were dangerous. As
normal adults, they likely knew that tigers were not normal pets and normally kept in zoos. It is
also common knowledge that tigers are carnivores that prey on other animals. Moreover, it was a
substantial and unjustifiable risk since there was a law on the subject and they kept right by their
outer fence. The tiger, even if it is 2 years old, weighs 300 pounds (more than any average)
human, and thus likely has the strength to overpower one. C defends that they kept the tiger in
the fence and put up a warning sign. Moreover the tiger was tame, however, that argument does
not apply since it obviously killed someone.
On balance, the conduct is gross and reckless and C and A are culpable for murder 2.
IM
IM requires mere recklessless or gross (criminal) negligence. Gross and recklessness are
discussed above. Negligence requires the defendant should have known. C and K should have
known that tigers are dangerous. It is common knowledge and they knew tigers were kept in
zoos since they knew “zoos were doing a terrible job” of taking care of the tigers. Moreover, they
should have known people might try to sneak into their fence to take their art since they were
worried about intruders.
On balance C and K are culpable for IM.
Any death that occurs when the defendant negligent handles a dangerous instrument is
automatically IM. The tiger is likely a dangerous instrument, since a statute has specified them
not to keep the animal. Thus, since S died, they are automatically culpable for IM.
FM
Any death during the commission of a felony is automatic murder. C and K committed a
felony (see above). All BARKRM is murder 1, all others result in murder 2.
The inherently dangerous doctrine precludes some of the least dangerous felonies and
only inherently dangerous felonies qualify. In the abstract, keeping baby tigers around are not
dangerous. They can be put in a cage or leashed and never hurt anyone. S favors the as
committed approach since someone died as a result of the crime of keeping a tiger there as
committed.
The merger doctrine requires an independent purpose other than to just kill and precludes
some of the most serious felonies. Malice may have to be proved anyways since keeping a wild
animal around can lead to death due to gross recklessness (see above). Thus, the felony likely has
malice and would merge, and FM would not apply.
The felony also must be in furtherance and during the felony. Duration begins at planning
and ends at escape. The tiger was still being kept, and thus the felony was on going. Moreover,
the death of an intruder was in furtherance of the felony, since C and K wanted to protect their
home in the first place. S argues that this was just a girl scout. It was not an intruder trying to
steal art.
Under the agency theory, defendant is culpable only for the acts of co-felons. C argues
that the tiger is an animal and not a human being, and thus not a cofelon. S argues that the tiger
considered a cofelon since it is part of C and K’s group that wanted to protect the home.
However, this is likely a stretch.
Under the proximate cause theory, defendant is culpable for any death that is the
proximate result of his unlawful acts. The death was foreseeable since the tiger was likely trained
to attack intruders (see more below).
On balance, felony murder will not apply due to the merger doctrine.
MM (unlawful act doctrine) says that any unlawful act not a felony resulting in death is
automatic involuntary manslaughter. C and K likely committed a misdemeanor (see above). The
doctrine is limited to 1) dangerous acts, 2) proximate cause (see below) and 3) mala in se.
Keeping a tiger around is likely dangerous, though on the other hand keeping a baby tiger may
be simply harmless. Keeping a tiger is also not inherently bad, and is more a regulatory offense.
Thus, the unlawful act doctrine will not likely apply.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for bringing the tiger
on to the land, S would not have died from the tiger.
Proximate cause looks at foreseeability and intervening acts. It is foreseeable that the
tiger (especially a young one not fully trained yet) would attack intruders. Tiger’s generally have
bigger teeth and also cannot discriminate against who is an intruder trying to steal art versus
some other intruder. Moreover, it is foreseeable that children may stop by and climb over fences.
On the other hand, argues it is not foreseeable for a small girl scout to climb over their fence.
That takes quite an effort and children are generally smaller than fences. Moreover, it is not
foreseeable that innocent people will climb over fences. Generally only intruders would do so.
Lastly, it was not foreseeable since the picture of the tiger was especially designed to warn
people.
Intervening acts look at foreseeability and control and policy. C and K likely did not have
control over the situation since they were not home. Alternatively they could have caged the tiger
or put it on a leash or another cage ahead of time. C and K also argue that the child climbing over
was an intervening act. She also had the free will and choice to do so. Alternatively, S argues that
it is foreseeable that children will be intrigued and climb over fences and not understand what
they are doing. However, courts will not likely want to blame the child.
C and K also assert that the ambulance attendants are a superseding act since it is not
foreseeable they will stop and eat cookies. General malpractice does not break the chain.
However, these are trained medical professionals who know what to do in a emergency and
generally do not take separate frolics. On the other hand, S argues that the ambulance attendants
were multitasking and the girl scout cookies are hard to resist (this is a stretch even if true). The
ambulance attendants had control of the situation and courts would also want to blame them
since they had a duty not to eat cookies and their conduct is gross and outrageous conduct.
On balance, causation is not established due to intervening acts.
Defense of Property
Deadly force can not be used to defend against property (at common law you could).
Using the tiger is likely using a spring trap, as it cannot distinguish between who to attack and
who not to. Moreover, K and C were not home and thus cannot attach a self defense claim to
their defense of property.
Necessity
Necessity (choice of lesser evils defense) is a justification for a crime committed because
it is the lesser of 2 evils. It requires a 1) choice of evils, 2) no apparent alternatives, 3) lesser evil
chosen, 4) imminence, 5) not brought upon self and 6) no contrary legislation.
The choice of evils was letting tigers die forever versus keeping one in their home. There
is also the choice of letting people rob their art or getting protection.
There must be no lawful alternatives. C and K argue there were not because the tigers
were dying and the government has not done anything. Alternatively, there may be lawful
alternatives such as continuing to pressure the legislature or holding protests. In regards to
protecting one’s home, there is always the lawful alternative of getting a dog.
The lesser evil must be subjectively and reasonably chosen. The harm avoided must be
greater than the harm prevented from a society’s point of view. They honestly believed that their
home was necessary and that the tigers had to be protected.
Lives are worth more than property, and the risk of someone dying from the tiger is
greater than the price of art. Alternatively, C and S might argue their art collection is worth more
than the valued life of a robber. Moreover, the lives of humans are worth more than the lives of
tigers. Society would rather choose the tigers to all die out than for likely even one person to die.
Imminence requires here and now, though some courts have relaxed it. The tigers were
not dying here and now. It takes time for a species to die out, often many years. Moreover, they
were still kept and protected in zoos. Under the MPC, imminence is just a factor, but this
situation is likely not imminent at all.
The situation is not brought upon himself since C did not cause zoos to take bad care of
tigers or cause them to die out. Nature did that.
There is contrary legislation because the legislature has already ignored his pleas and
made statutes to not allow people to protect tigers themselves.
On balance there is no necessity defense. The only alternative is jury nullification out of
sympathy, but S would strongly argue against allowing this argument
STATE V. K
Conspiracy
At common law, one can avoid further coconspirator liability via a full and voluntary
renunciation and informing the other co-conspirators. K likely had a true change of heart as she
never really wanted the tiger to begin with. Moreover, she told C she wanted to get rid of the
tiger. It is unclear if C told K she would no longer be a part of the conspiracy and had told C she
called the animal control.
Under the MPC, one can avoid further coconspirator liability via a full and voluntary
renunciation and informing the other co-conspirators or the authorities. Here she had a true
change of heart and notified animal control, which likely suffice for authorities.
MPC also allows one to avoid the original conspiracy if one thwarts the crime. This
however, did not likely occur since it was too late. Moreover, the crime had already been
committed as keeping the tiger is an ongoing crime, and thus there was no crime to thwart since
they have already kept the tiger for some time.
Accomplice
There was no abandonment defense at common law. Some courts allow a full and
voluntary renunciation if efforts are made to prevent it. She had a true change of heart and
notified the authorities (to take away the tiger and prevent further crime), and thus she may have
an abandonment defense.
Under the MPC, it is allowed if complicity is terminated and efforts made to stop the
crime or call the cops. She did do this and would have a defense. However, there is still the
problem of the fact that keeping the tiger is an ongoing crime and they both have already
committed.
Self Defense
Self Defense, among other things required imminence. K was not facing an imminent
attack by a tiger (nor reasonable) and thus may not have a self defense claim.
Duress
Duress, among other things also requires imminence (see above). There is likely no
duress claim since the threat was also not reasonable.
STATE V. GUMBY (G)
Conspiracy
Gumby is also culpable for conspiracy since he “agreed” to do so and thus AR is

established. Moreover, he had the MR since he had the purpose. This purpose is inferred from his
stake in the venture. He charged double the house call rate. He does not have to join the
conspiracy at the same time.
Under Pinkerton, he would also be culpable for the death of S, keeping the tiger in
addition to a charge of conspiracy.
Accomplice
AR is established by “house calls” and helped by giving advice likely over the phone. He
must have know he was helping since they talked on the phone and discussed it. He had the
purpose due to the stake in the venture (see above).
Under the reasonably foreseeable doctrine, he is culpable for any natural and probably
consequences. Thus, the tiger being kept there and the girl dying is likely foreseeable and G
would be culpable for those crimes under an accomplice liability as well.
Professor Levenson 1998

Practice Final
1
STATE (S) v. WINSLOW (W)
Misdemeanor (of operating carnival equipment w/o inspection)
Conspiracy
Conspiracy is the crime of agreeing to another crime. It is a separate and inchoate crime that
AR requires an express or implied agreement between qualified defendants. W convinced
Jamie to loosen the bolts. Jamie agreed by concerted action of "loosens the bolts on his
amusement ride."
Some states require an overt act (not required at common law). It must be an act (legal or not)
by an coconspirator carried out for the purposes of the conspiracy. Jamie's loosening of the
bolts suffice. Some courts do not require an overt act for serious crimes. The loosening of the
bolts is not automatically dangers, as the ride may function without it, moreover it was suppose
to be inspected. Thus is not a serious crime and an overt act would be needed.
MR requires knowing agree with purpose for the crime to succeed. W must have known when
he asked and convinced Jamie to agree to help him. Purpose can be inferred by stake in the
venture, which W has because he would likely get a raise out of it.
Under Pinkerton liability, there is automatic coconspirator liability for crimes in furthernace of
the conspiracy. Thus, he would be culpable under Pinkerton for Jamie's acts of loosinging the
bolts and then foreseeable operating his machine that has not been inspected.
Thus, W would be culpable for conspiracy and the misdemeanor of operating machinery
without an inspection as well as the death that occurs (since Jamie could also be culpable for
that)
Death of Fanny Fun (FF)
Homicide
Homicide is the unlawful killing of another human being. There in no indication that W intended
to kill anyone. He wanted to teach the owner a "dramatic lesson" to raise their wages.
Moreover, he planned to have the inspectors come and fail the inspection before the carnival
opens. Thus, murder 1 and voluntary manslaughter does not apply.
Murder 2
Murder 2 requires malice and is a dumping groudn for when there is not enough for
bodily harm, or gross recklessness (implied malice). There is no indication of intent (see
above).
Gross recklessness requires a conscious disregard of a substantial and unjustifiable risk and
the conduct to be gross. W was conscious of the risk since he knew it would needed to be
inspected, suggesting that it would cause serious problems if it didn't. Moreover, it is a
substantial and unjustifiable risk because many people are on the ride and can get hurt. The
ride is considerd a heavy machinery and if it malfuctions, people are involved. Alternatively, W
asserts he didn't realize the risk of harm since he expected the inspectors to come and stop
him. Moreover he thought there was little risk because he told Jamie there was "little risk of
harm." On balance, it was the conduct was reckless.
Gross requires the magntidue of harm to outweigh the social utility. The magnitude of harm
was great, since people are involved at high speeds (due to the spin) and can die if something
goes wrong. They can easily go flying out. Moreover, there is no social utility since it only
benefits the workers. The alternative would be to strike or another lawful way to get a raise. On
the other hand, the probably of harm was small, since there may be many safety precautions
(like a seat belt to hold people in place. Moreover, the inspectors should catch the harm
(however he said the inspectors "will most likely" catch problems, suggesting they might miss
some).
On balance, the conduct was gross and reckless and thus W would be culpable for murder 2.
IM requires mere recklessness or gross (criminal) negligence. The act is reckless and gross.
Negligence requires that the defendant should have known. W should have known that
something could go wrong if the bolts were loosened. W should have known that inspectors
could be late. W should have known that people can die when the ride malfuctions.
Moreover, any death that occurs when defendant negligently uses a dangerous instrument is
automatically IM. The amusement park is a dangerous instrument. It is a machine that spins
people around. Although it is for fun, it has potential for great harm.
Thus, W is culpable for IM.
Uner the unlawful act doctrine (misdemeanor manslaughter), any unlawful act not a felony
resulting in death is automatic IM. Defendant is culpable for IM under the conspiracy theory of
the Pinkerton doctrine (see above). MM is limited to dangerous acts, proximate causes (see
below), and mala in se. Loosening bolts is generally not a dangerous act. There are lots of
bolts lose throughout any machine. Moreover, not having bolts inspected is also not dangerous
and not a mala in se crime. It is more of a regulatory offense to ensure safety in amusement
parks.
On balance, W is not culpable for IM under MM.
Causation
Causation requires actual (but for) and proximate (legal cause). But for W's asking Jamie to
loosen the bolts, FF would not have died. W argues that the ride could have malfunctioned
still, but this is unlikely.
Proximate cause looks at foreseeability and intervening acts. S argues it is foreseeable that
someone would get hurt when an act is intentionally made to alter the machinery. Moreover a
statute has been made to protect people from it, suggesting that harm is foreseeable.
Lastly,accidents at amusement parks are foreseeable. W argues that the harm was not
foreseeable since the inspector would notice the problem. Moreover, bolts may be lose all the
time and thus the accident was not foreseeable.
Intervening acts look at foreseeability and control and policy. W argues that it is not
foreseeable that both the inspector being late and Jamie allowing the ride to go on as
interevening acts that are not foreseeable. S would counter again that the inspector being late
is foreseeable, since lateness does happen to everyone. Furthermore, it is foreseeable that the
owner would open the park and allow the rides to run. The owner and Jamie may have had
control of the situation, but courts would want to blame W who started the whole thing.
On balance, causation is established and W is culpable for the death of Lilly.
Death of Lilly (L)
Causation
Homicide AR and MR, and misdemeanor manslaughter are established above. Under
Pinkerton, it is forseeable that more than one person would die from the acts of Jamie and W,
and thus W may be culpable for the death of L under conspiracy liability.
But for W asking Jamie to unscrew the bolts, L would not have died. W asserts that RJ
Sampson might have ended up killing L anyways. However, the death from the chair shortened
her life if RJ would kill her later.
W also asserts that the fact that the seat hit Lilly (L) who was being kidnapped is an
intervening cause. It is foreseeable that a seat would fly off, since losening bolts tends to lead
things to fall apart. Moreover, since the ride spins around, objects are expected to be flying. W
argues that the chance of that was small. Moreover, it is not foreseeable that someone will be
hit. However, this may not be likely if amusement parks are generally crowded.
Regarding intervening acts, criminal acts of others are likely superseding, and courts would not
want to blame W because RJ Sampson (RJ). had control of the situation. S would want to
argue that both RJ and W are concurrent causes, rather than RJ being a superseding one.
Policy dictactes that W should also be blamed.
Thus, W is likely culpable for the death of L.
Defense of Others
Though W was helping others, the other operators are not under attack. They cannot use self
defense nor was it reasonable to help them in this manner.
Necessity
Necessity (choice of lesser evils defense) justifies a crime commited because it is the lesser of
2 evils. It requires 1) choice of evils, 2) imminence, 3) no apparent alternatives, 4) lesser evil
The choice of evils was not getting a raised wage or loosening the bolts.
Imminence required here and now though some courts have relaxed it. W asserts the threat of
not getting a wage was constant and thus here and now. Under MPC, imminence is just a
factor and thus the threat was reasonbly imminent.
There were likely lawful alternatives such as petitional the government to increase wages, or
persuading Richie Rich in other ways like going on strike.
The lesser evil must subjectively and reasonably be chosen. The harm avoided must be
greater than the harm caused. Since lives are involved and at risk once loosening the bolts,
and wages involve money and thus property, society would not have agreed with W's choice
since lives are worth more than property. W asserts that lives are involved since his wages are
too low and he can starve, but this is a stretch.
He likely brought this upon himself since he joined and decided to take this job.
Moreover, there is a law regarding the misdemeanor and thus is likely contrary legislation.
On balance, there is no necessity defense. The only hope is jury nullification out of sympathy,
but that will not likely work since people died because of wages.
STATE v. RICHIE RICH (RR)

Misdemeanor of Operating Carnival Equipment
Strict liability requires no mens rea and is rejected by the MPC. The default level is normally
mens rea so to see if S/L applies courts look at 1) language of statute, 2) legislative intent, 3)
and policy. The language has no mens rea. Moreover, courts wanted to protect the general
public and wanted amusement parks to exercise the highest care, suggesting S/L should
apply.
S/L indicia include public welfare offenses, high number, high prosecution burden, low
penalties, and highly regulated high risk industry. Carnivals may be highly regulated, but it
certaintly affects the public since a lot of people attend them every day. There is not likely
many cases of people getting hurt, but the peanlty is certainly low since $500 dollars is not
much. Even 3 months in jail is not likely a long time.
On balance, this is likely a S/L crime and RR would automatically be culpable for the
misdemeanor.
Mistake of Fact
Mistake of Fact applies if it negates the mens rea of a material element. RR had the "mistaken
belief" that all equipment was inspected, and since the statute require the defendant to have it
be inspected, there would be a mistake of fact defense.
However, this is likely an S/L crime and mistake of fact would not be a defense for the
misdemeanor. Even if was not a S/L crime, RR had no knowledge nor consciously disregarded
a risk that the bolts would be lose. An argument could be made that he did not check to see if
the inspector came, but there are not enough facts to support this.
S v. RJ
Death of Lilly
RJ is likely guilty of kidnapping since it says he in the process of "kidnapping her." RJ may
assert he didn't kidnap her yet, since he was only in the "process" of kidnapping her.
-homicide, there is likely no conscious disregard of a chair flying around, the defendant should
have known a chair would fly off an amusement park ride is not a valid point
Felony Murder (FM)
Any death during the commission of a felony is automatic murder. The felony is kidnapping
(see above). All BARKRM results in murder 1, and thus RJ would get murder 1. All others
would normally be murder 2.
The inherently dangerous doctrine precludes some of the least dangerous crimes and only
inherently dangerous crimes qualify. Generally kidnapping is an inherenly dangerous crime
since it is BARKRM. HOwever, in the abstract, there are plenty of ways to kidnap someone
without killing them. S favors the as committed approach, since someone died during the
kidnapping as committed.
The merger doctrine requires an independent purpose other than to just kill and precludes
some of the most serious crimes. Malice should have not to be proved anyways. Kidnapping
does not have an intent to kill or cause grave bodily harm, but likely gross recklessness would
be involved. Carelessness during such crimes generally lead to death. Thus, kidnapping would
likely merge and FM would not apply.
The death also must be in furtherance during the felony. It was during the felony since RJ was
"in the process" of kidnapping. However, RJ asserts it was not in furterhance of the
kidnapping, since he was her ex-boyfriend and likely did not want to kill her just kidnap her.
On balance, RJ is culpable of M1.
Causation
But for RJ kidnapping L, she would not be exactly where she was and thus get hit by the chair.
RJ asserts it is not foreseeable that L suddenly gets a chair. That is an unusual way to die and
completely bizarre and random. The chair can also be looked as an intervening act, and is also
not likely foreseeable. S argues that this was during the comission of a dangerous felony, and
thus death is automatically foreseeable. Generally chairs off amusement parks do not go flying
off. Though RJ had control over L, policy dictates that RJ should not be blamed this death was
just bad luck.
Regarding intevening acts, the defendant takes his victim as he finds them. Thus, the fact that
L chose not to accept blood is not intervening. Though RJ has a strong argument that he is no
longer in charge of the situation and should not be blamed since L had free will, the court does
not holder her decision as an intervening act.
On balance, causation is established and RJ is culpable for the death of L.
S v. Joey (Jo)
Death of Jamie (J)
Homicide
AR is etsablished by using a wrench to beat J over the head.
Murder 1
Murder 1 requires premeditation and malice. Premeditation requires a cool deberate though.
Jo argues he was "furious" like the crowd and "screams" in anger. moreover he beat J over the
head likely several times, suggesting anger.
Under Carrol standard, no time is too short and Jo could have formed the purpose to kill in a
cool deliberate manner.
Under the Anderon approach, preconceived design is required and looks at motive, manner
and planning. J likely did not plan it since he grabbed the wrench out of J's hand.
Murder 2
Jo likely had the intent to kill since he targeted Jamie over the head. The head is a small and
vulnerable spot that generally results in death if hurt. This also suffices for intent to cause
grave bodily harm.
There is no indication of anything other than intent so gross recklessness does not apply.
Manslaughter is killing without malice. VM requires actual heat of passion, legally adequate
provocation, and no cooling time.
Jo had sudden anger after FF died.
Under the categorical approach, injured relative, inter alia, is required. FF was a "brother" of Jo
and thus this would suffice.
Majority of the courts use a reasonable person standard taking account into physical
characteristics. Even courts that use emotional characters would likely find that when one's
relative has died, there is provocation.
No cooling time is required. The act must immediatley follow provocation. S argues that the
crowd had to take time to gather. Jo argues his anger was long smoldering and building up this
entire time.
Under MPC, there must subjectively be extreme emotional distress and a reasonable excuse.
Jo argues that he was emotionally disturbed because his sister died. Moreover, getting
revenge is a reasonable excuse, which looks at one from a reasonable person in the
defendant's situation. S argues Jo's act is from his bad personality and moral idiosyncracy, as
no one else in the crowd killed anyone.
IM
IM does not apply since there is no indication of anything other than intent.
Causation
But for Jo beating J over the head, J would not have died. Jo argues that someone else in the
crowd would have killed J if he didn't. This might not be true and Jo would have lived longer if it
was.
The result is foreseeable and there are no intervening acts. Beating someone in the head with
a solid metal object would cause brain fractures and bleeding, which can result in death.
Defense of Others
Traditionally, one stands in the shoes of others. However, there is no indication that J was
going to use the wrench in his hand, and thus there would be no defense of others since the
crowd was not in danger. Moreover, in modern courts, the defendant only has to be
reasonable. It is unlikely the crowd needed help since J likely uses the wrench for work and
the crowd can easily take him.
Self Defense
Self defense is a type of necessity justifying the use of force when under unlawful attack. It
requires 1) honest and reasonable fear, 2) imminence, 3) of death or serious bodily injury, 4)
imminence, 5) no excessive force, and 6) not the initial aggressor.
The fear was not likely honest nor reasonable. The crowd could easily overpower J. MPC
looks at if the defendant reasonably believed force was necessary. This was likely also not true
since once Jo grabbed the wrench, J was defensely and can no longer attack.
The threat was likely not imminent, though J did have the wrench in his hand. It was likely not
raised as if to be used for an attack. Under MPC, court looks to see if defendant reasonably
believed it was imminent, and this would likely fail too.
A wrench is likely deadly force, though others may argue it is a blunt instrument and is really
hard to kill someone with it (but apparently not for Jo).
Excessive force was used since once Jo grabbed the wrench, J was no longer using deadly
force.
The initial agressor is one who raises it to a level of violence. The crowd was likely the initial
aggressor, though Jo argues that J raised it to a level violence since he had the wrench. This
might not apply if the crowd is the initial aggressor (and not the initial instigator) since a crowd
can likely beat someone to death and forced Jamie to use self defense to begin with.
On balance there is no self defense claim, though some courts may allow an imperfect self
defense to mitigate from murder to manslaughter.
2.
S. v. JOHN (J)
Wearing a Santa costume to Receive
Attempt is the crime of trying to commit another crime. It is not a separate crime but a theory of
liability for the substantive offense. J has taken the last step by putting on the Santa Claus
costume. He had the purpose to commit the crime since he needed it for the bank robbery.
Impossibility applies when the defendant has taken the last step but circumstances prevent
completion of the crime. Factual impossibility is not a defense. Legal impossibiltiy is a defense.
This is likely a case of true legal impossibility since there was no law for impersonating Santa
in that fashion. S argues that it was a factual impossibility due to the fact that no law existed
(which is a stretch).
On balance, there is no attempt for wearing a santa costume.
Bank Robbery
Attempt
Attempt is the crime of trying to commit another crime. It is not a separate crime but a theory of
liability for the substantive offense.
AR
was used at common law. The dangerous proximity looks at what has been done and what is
left. J has put on the costome, obtained it from Bill, written out a demand letter, grabbed a bag
and driven to the bank. What is left is to drive a mile, go into the bank, give the demand letter
to someone, and get away. On balance, there has been more done than not and AR would be
established.
Under the unequivocal (res ispa loquitor) approach, courts look in the abstract to see if there is
an unequivocal intent. There is really nothing else one can do when one writes a demand note,
uses a costume. Alternatively, J argues this can be a joke for the holidays. On balance, there is
like AR under this standard.
Under the MPC, which combines the previous two approaches, there needs to be a substantial
step corroborative of intent. J has put on the costome, obtained it from Bill, written out a
demand letter, grabbed a bag and driven to the bank, all for the commission of the crime. It
shows intent because it shows a desire or aim to rob the bank as there is people do not write
demand notes for fun. On balance, AR is established.
MR
MR requires purpose. MPC requires purpose or belief. J had the purpose to rob the bank
because he needed the money to survive. Moreover, he had the desire to obtain more money
because his family really needed it. He did not want to get hurt from the bill collectors and to
prevent being thrown into the streets.
Abandonment
Abandonment was not allowed at common law. It requires a full and voluntary renunciation. J
did not have a true change of heart since he heard on the radio the bank is closed. Thus there
is no abandonment defense and J would be culpable for attempted bank robbery.
Felony Murder
Any death during the commison of a felony is automatic murder. All BARKRM is murder 1, and
the rest is murder 2. However, courts are split on whether FM applies to attempt. S may argue
that the drive home is part of the felony of robbery, but J has likely obtained a location of safety
since no police are chasing him. Moreover, the attempt is likely over since J has turned around
started to go home. (see more below on felony murder)
Death of Young Woman
Homicide
AR is established by stepping on the gas pedal to continue driving when the police has begun
to chase. There is no indication of intent to kill the young woman, as J and her and likely
strangers, thus murder 1 and voluntary manslaughter does not apply.
Murder 2
Murder 2 is defined above. There is no indication of intent (see above). Gross recklessness
requires a conscious disregard of a substantial and unjustifiable risk and the conduct to be
gross. J likely consciously knew about the risk since he must have heard the siren. Moreover,
he likely saw the flashing lights. He also consciously disregarded since he likely did not want to
be caught since he thought he was committing a crime relating to his costume. Moreover, he
drank alcohol earlier and likely knew the effects of that on his driving.
Gross requires the magnitude of harm to outweigh the risk. The probably of harm is likely low.
There is no indication he was speeding or driving recklessly. Though he did drink eggnog early,
but there is no indication it affects his driving ability. The type of harm is great since car
accidents often result in death. On the other hand, J asserts the probablity of harm is low since
he is likely driving normally.
On balance, the conduct is not gross nor reckless.
IM
IM requires mere recklessness or gross (criminal negligence). Negligence requires that the
defendant should have known. J should have known that not stopping for the police would lead
people to react accordingly and suddenly. He should have known to stop. He should have
known that people would try to get out of the way for the police.
Moreover under dangerous instrumentality (defined above), a car is a dangerous instrument
and J would automatically be culpable for IM.
Felony Murder (defined above)
Even if bank robbery does not suffice for FM earlier, if running away and not stopping when
police are chasing you could be. If it is a felony, it would result in murder 2 since it is not
BARKRM.
Running away from the police is not inherently dangerous in the abstract. You can drive
normally at a normal speed with police chasing you and no one would die. Under the as
committed approach, S argues that since somoene did die, the felony is dangerous as
committed.
There is no intent to kill and likely no malice when it comes to running away from the police.
Thus, the felony would not merge.
The young woman died while J was running from the police and thus during the felon. The
death was not likely in furtherance of the felony since J didn't need anyone to die to keep
driving. On the other hand, S argues that the girl needed to die so the old man can get out of
the way for the police to keep chasing.
Under the proximate cause approach, J may not be the proximate cause (see below).
On balance, felony murder is not established.
Misdemeanor Manslaughter (MM, unlawful act doctrine)
If running from the police is not a felony, J may be culpable for MM. He commited this
misdemeanor by continuing on the gas pedal and not stopping. He likely had the MR for it
since he didn't want to be caught for his earlier crimes. The doctrine is limited to 1)
dangerousness, 2) proximate cause (see below), 3) mala in se. Running from the police is
generally not dangerous, though others may argue that a high speed chase is. Running from
the police is not bad in itself, and likely a regulatory offense to encourage people to obey the
police.
On balance, J is not culpable under MM.
Causation (defined above)
But for J not stopping for the police, the old man would not have sped through the intersection
to get out of the way. J argues that even if he stopped, the old man would still have sped
through the intersection since he already heard the siren (for the few seconds before J
stopped) and the girl could have died. Moreover, it is possible the old man would have sped
even if there was no siren at all.
Regarding proximate cause, S argues it is foreseeable that there is a collision or an accident
when people run from the police. J argues that he was not speeding but just driving normally
and that the sound of sirens alone do not cause foreseeable accidents.
Regarding intervening causes, the old man's act could be an intervening cause. J argues that
it is not foreseeable that people would speed up. When people hear sirens they slow down and
pull to the side. Alternatively, it is foreseeable that people could speed up to get out of the way.
Moreover, the old man had control of the situation and we would not likely want to blame J. He
was not running from the police at high speeds or in a reckless manner. Moreover, the oldman
was speeding through an intersection and he may have been careless. The court may want to
blame him, even if he is old.
On balance, causation is not established.
Duress (common law)

Duress excuses conduct due to compulsion by another. It requires 1) threat of death or serious
bodily injury, 2) imminence, 3) to defendant, 4) that a man of ordinary fortitude and courage
would yield, 5) not brought upon self, and 6) not for homicide (no one asked him to kill).
S argues there is a threat of death if he doesn't pay his bills since "it won't be pleasant." Even
if his bill collectors are "vicious" this threat is too vague and has no indication of injury. There
may be a threat by his landlord of eviction, which may cause death if he starves on the streets.
Imminence requires here and now, though some courts have relaxed it. There is no imminence
since the bill collectors (or his landlord) are going to evict or threaten him at the time.
Early common law requires the threat to be his defendant, which suffices since both threats by
his landlord and his bill collectors are targetted at him. Later common law added close
relatives and family, which suffices since his family would be thrown on the streets as well.
An ordinary man would not try to rob a bank to save his family. He would not yield to vague
threats in the future and try to come up with more alternative and lawful ways.
S argues that the situation is brought upon self since J didn't work hard earlier in his life and
pay his bills.
On balance, there is no duress defense. Also, there is no longer imperfect duress.
Duress (MPC)
Duress requires 1) any unlawful threat to anyone, 2) that a person of reasonable firmness
would yield, and 3) not brought upon self (see above). Imminence and type of harm are factors
on a sliding scale. Since there is likely no imminence and the type of harm is vague, a
reasonable person would not yield. Moreover, bill collectors genereally do not kill unless
they're in the mafia or something, and thus that is not a serious threat.
On balance, there is no duress defense under the MPC.
Defense of Others
Traditionally, defense of others was allowed if the one being helped actually could use SD. J's
family had no imminence and was not even under attack at the time even if the bill collectors
eventually would. Majority of courts require the defendant to be reasonable. J was likely
unreasonable in deciding to use force and robbing a bank to defend his family. Thus there is
likely no defense of others.
Necessity (defined above)
Necessity requires 1) choice of evils, 2) no apparent alternative, 3) imminence (see above), 4)

lesser evil chosen, 5) not brought upon self (see above), and 6) no contrary legislation.
The evils were being evicted and starving on the streets (both J and his family), and being
hunted by the bill collectors or rob a bank and run from the police.
There are likely lawful alternatives. There are soup kitchens and welfare places to help in
situations like this. Moreover, he could negotiate with his landlord or the bill collectors.
The lesser evil must be subjectively and reasonably chosen. J likely honeslty believed he and
his family would starve. The harm avoided must be greater than the harm caused. Society
would not choose to rob a bank and run from the police. Lives are generally worth more than
property and since a young woman died, it is worth more than J's home. On the other hand, J
argues his lives and his families lives are at stake. Moreover, he did not anticipate the death of
the young woman when making the choice. Majority of jurisdictions do not allow necessity in
homicide cases. Though some courts (MPC) allow more lives to be saved over lesser lives. In
this case, saving his entire family (of more than one) would be worth more than the one young
woman who died.
There is likely legislation making it unlawful to run from the police and rob a bank.
On balance there is likely no necessity defense. The only hope would be jury nullification out of
sympathy to feed his family. The prosecution will likely strongly argue against this approach.
Self Defense (defined above)
Self defense likely does not apply. The bill collectors were not attacking him. Moreover, his
bank robbery and running from the police is not considered force to defend himself against bill
collectors.
Insanity
Insanity excuses a crime due to one's mental status at the time of the crime. The defendant
must also be competant or sane to stand trial, and there is no indication he cannot, though
when he was arrested he likely could not have been sane.
Under M'Naghten, 1) defendant is presumed sane at the time of the offense, 2) requires a
mental disease or defect, and 3) does not understand the nature and quality of his acts or that
they are wrong.
Mental disease requires a mental abnormality substantially altering mental processes and
impairing control. Factors include history, stigma, symptoms, number qualifying, sincere, and
brought upon self (see above). He has a history since he has seen doctors before. The
symptoms include hallucinations of fairies, which can be easily faked. There is likely no stigma,
but a lot of people might see things. On balance there is likely no mental disease or defect.
J argues he did not understand the nature and quality of his acts because he was seeing
"Sugar Plum fairies dancing." Moreover, when he is kidnapped he thinks he is "kidnapped from
the North Pole. The fact that he was "looking for his elf" suggest he did not hear the sirens and
was trying to do something else. He was in such a hallucinatory state that he could not hear
the sirens or realize what he was doing. Lastly, the hallucinations caused him to drink alcohol
which made his mental status even worse. S argues that was thinking he was at the North
Pole and looking for the elf is all faked. J had put on the Santa Clause costume himself and
had a reason to do so. Moreover, his preexisting condition of seeing fairies has nothing to do
with a new and likely faked hallucination of being Santa.
Common law additions include the irresistible impulse (police at the elbow) test. Though the
cop was not at his elbow, the cop was behind him in a car. This might not be close enough for
the test, but J asserts that it should be extended to that distance when they're in a motor
vehicle. He could not have controlled himself because of his hallucinations even if the cop was
in a car and at the elbow of his car. The deific decree addition also does not apply since J must
be hearing voices from God. The fact that he sees the fairies as his wife who "taunts" him is
insufficient.
On balance, there is likely no insanity defense under the MPC.
Under the MPC, 1) and 2) are the same, 3) lacks substantial capacity to appreciate the
criminality or to conform to the law (see irresistible impulse above). J argues he lacked
substantial capacity to due the alcohol and his hallucinations. Appreciation is knowledge and
emotional concern. J argues that he had knowledge he was running around but did not
emotionally realize he was running away from anyone.
On balance, J has a much greater chance for insanity defense under the MPC.

DC allows use of experts to show no mens rea or intent was formed due to a lower mental
status. This is rejected in some courts.
Other courts allow to reduce a specific intent crime to a general one. However, there is no
indication that there is a lesser crime for bank robbery or running from the police and thus no
DC defense.
The MPC allows a reduction from general intent crime to no crime. Thus if experts who that
defendant had a lower mental status, he may have a DC defense.
Intoxication
Intoxication is drug or alcohol use substantially affecting mental processes causing prostration
of mental faculties. J likely did not was still fine and thus his mental process was not affected
since he was still able to drive and try to rob a bank. It cannot be used for liquid courage. S
argues that he already decided to rob the bank before drinking the whiskey, but the facts are
vague in this aspect.
Involuntary intoxication is a full defense and can be from deceit, force, or pathology. There is
no indication that drinking the eggnog was involuntary.
Voluntary intoxication was not allowed at common law and can reduce a specific intent crime
down to a general one (see above).
The MPC uses the same approach. On balance, there is likely no intoxication defense.
-entrapment issue, police starting siren is likely normal, and patient likely predisposed, conduct
likely not outrageous, a normal person would stop
S v. Bill
Conspiracy (defined above)
AR is established by giving and "loaning" the outfit to J. This represents a concerted action of
an implied agreement.
MR requires one to knowingly agree with purpose for the crime to succeed. B did not agree to
commit any crimes together and nor had the purpose for the crime to succeed. Thus, there is
likely no conspiracy charge. Knowledge is sufficient in some courts for serious crimes, but
giving an article of clothing likely does not suffice.
Accomplice
Accomplice liability is helping another commit a crime. It is not a separate crime but a theory of
culpability for the substantive offense.
AR is established by giving and "loaning" the outfit to J. This helps J hide his identity in robbing
the bank and running from the police.
MR requires knowingly agree with purpose for the crime to succeed. Willful
blindness/deliberate ignorance (ostrich defense) also suffices for knowledge. He never asks J
due to his suspicians but this suggests he knew of a crime and knowingly helped J commit a
crime. Knowledge is sufficient in some courts for serious crimes, but giving an article of
clothing likely does not suffice.
B defends that he did not have the purpose for the crime to succeed. He may have helped J,
but he did not know about bank robbery or running from the police. Moreover, he likely did not
even want B to scam others. He could be giving the costume as a friend even if he thought B
would do something bad with it. Moreover, there is no indication that B thought scamming
others with a costume is a crime. Lastly, while B has a nexus to J, he has no stake in the
venture.
On balance, there is likely no accomplice charge.
Mistake of Fact
Mistake of fact applies if it negates the material element. B argues he did know B was going to
commit a crime. This is unlikely true if B thought scamming was a crime. What you need to
know is what makes your conduct wrong. Helping another commit a crime is wrong, it doesn't
matter what crime. Thus B has no mistake of fact defense.
3)
Retribution
One who lies is morally wrong and thus should be punished. A politician lies to the public and
thus should receive a greater punishment. Alternatively, this is more a punishment out of
revenge and emotion.
Deterrence
Lying is wrong and politicians should be deterred from lying to the public in order to prevent
harm. By punishing politicians, we encourage others not to die. They set an example for
society and they must be punished if they lie. On the other hand, politicians and may be crazy
and not think things through rationally. Moreover, they might not be deterred since it is hard to
get caught when it lying sometimes. Moreover, it is punishing one to benefit another.
Incapacitation
People who lie hurt the society and should be prevented from lying. On the other hand,
politicians may also do a lot of good. Putting them in jail would prevent them from helping the
society at the same time. Moreover, politicians may not lie more than once and thus it would
incapacitation serves no purpose if they were not going to lie anymore anyways. Lastly, new
politicians that lie can replace the ones already in jail.
Rehabilitation
Politicians should be put in jail so they learn not to lie. Politicians generally can be thought of
as more rational than criminals and more likely to change, so this may be a good approach.
On the other hand, it might not be the people but the nature of the job. Thus, the person might
be changed, but the job cannot be.
1st Amendment
There are first amendment defenses against lying. The government guarantees free speech,
and making it a felony to lie as a politician may impinge on free speech rights. Every individual
has personal autonomy and should be respected.
Administrative
It is difficult to tell if someone is lying. Currently, there are no known accurate lie detections
methods out. The definition of lying is hard to define as well. A statement can be a truth but
misrepresent because it is not the whole truth. Thus, it is hard to decide what constitutes lying
when it comes to misrepresentations, half truths, accidental mistakes. Lying is a mental
condition and it is hard to figure out who is lying and who isn't. We cannot yet read minds.
Moreover, a lot of people lie and likely more politicians lie (maybe less). This lie can open the
floodgates. On the other hand, floodgates perhaps should be opened if it is necessary. An
increase in litigation and government money may be needed to protect the general public.
-concept of legally prevents the use of value laws, moreover since the law is vague judges
would be making and defining the law and in defining what is a lie
Consistency
Courts generally want to be consistency. Change takes time and occurs slowly. A sudden new
law making it a felony to lie is a drastic change. People may not open it. Cops may not enforce
and there could be overcriminalization problems. The law would not be respected, cops can
discriminate, valuable police resources can be wasted, and ineffective deterrence results.
-stigmatization, moreover, there is no generally consensus regarding morality
Fairness
Politicians may argue it is unfair for them to not able to lie while others can. There are a lot of
people who make public speeches to the public. It would be unfair for them not to be able to lie
if the media can lie.
Protection
The public needs to be protected from lying politicians. It is a sign of corruption and bad acts.
Alternatively, politicans may by its nature need to lie. The government has a job to protect the
social welfare of the population and if politicians are limited in their speech, they may be
ineffective in communication. They will not be able to do their jobs as well and thus social
welfare would decrease since society depends on their words. Lastly, it might be better for the
people if politicians lie. People can be in a better mood and be more optimistic if they are given
hope.
Proportionality
A felony might be disproportionate. Lying is not inherently dangerous. People do not die when
politicians lie (though it could be possible). There is no damage other than false hope.
Moreover, politicians can be removed from office and the general public does have
alternatives.
One generally should not be punished for over a year for just words alone. No mens rea
is mentioned in the statute and thus the default level would be recklessness. It cannot be a strict
liability since its penalty is likely high.
Spring 2001 Levenson Final
STATE (ST) v. SARA (S)
Attempted Bank Robbery
Conspiracy
Conspiracy is the crime of agreeing to commit a crime. It is a separate and inchoate

crime punishing preparatory conduct.
Actus Reus (AR)
AR requires a express or implied agreement between qualified defendants. S likely

agreed by the concerted action of joining. It is also an act of omission since she did not quit
once she learned they committed bank robberies. S did not have to join the conspiracy, as she
likely joined an ongoing one.
Some courts require an overt act (not at common law). Making placards suffice. Some
courts do not require it for dangerous crimes, but protests are generally not dangerous.
However, bank robberies are and thus an overt act would not be needed.
Mens Rea (MR)
MR requires knowing agree with purpose for the crime to succeed. She was aware at
the time they conducted illegal protests. Purpose requires desire or aim. She had a desire to
help the acitivities succeed as she "quickly jumped into their activities." S counters that her
purpose was to try to peacefully change government policies, though there is no indication she
can't do that peacefully but also illegally.
Purpose can be inferred from a stake in the venture. S asserts she never gets any
money, however, the money was used to fund S's protest activities.
Pinkerton
There is automatic coconspirator liability for any crime carried out in furtherance of the
felony. This is rejected by the MPC. Under Pinkerton, she would be culpable for the attempted
robbery, any illegal protests, and homicide carried out by Steve-O (see below). These crimes
are all carried out to better the society. The bank robberies bring in money so they can illegally
protest.
On balance, she would also be culpable for a conspiracy charge.
-talk about in futherance
Accomplice
Accomplice is the crime of helping another commit a crime. It is not a separate crime but
a theory of liability for the substantive crime. S may be an accomplice to the illegal protests, the
bank robberies, and the death of the bank customer. S is likely an accessory before the fact,
since she helps out the group behind the scenes, however common law distinctions have been
removed and she would get the same punishment.
AR requires help. S made "placards." This suffices for the illegal protests. S herself
asserts she never helped or wanted to participate with the bank robberies. However, she likely
helped them by joining. This act of joining help keeps the organization alive.
Purpose requires knowing help with purpose for the crime to succeed. She was "aware"
they conducted illegal protests and helped make the placards. She was later aware the group
was robbing banks and continued to support the group. On the other hand, S asserts her
purpose was to peacefully change government policies. Again, there's no indication she can't
peacefully and illegally do so. Moreover, she had a stake in the venture (see above). Knowledge
is enough in some courts for criminal facilitation. Other courts do not need purpose since
knowledge is sufficient for dangerous crimes. Bank robberies are dangers, and protests are not
(though they arguably can be if they turn into a mob).
probably consequences. Bank robberies and illegal protests carried out are foreseeable since
the group needs money and has to conduct their activities somehow. A death is also
foreseeable during a robbery since it is BARKRM and thus inherently dangerous.
On balance, there is likely an accomplice charge for the substantive crimes of bank
robbery, illegal protest, and homicide.
Bank Robbery (by Steve-O, or SO)
Attempt
AR has several approaches. The last step was used at common law. SO has already
taken the last step by taking the stolen cash and put it in his hands (it must have been in his
hands already for him to drop it). Since the last step has been taken, all other approaches have
been satisfied.
MR requires purpose. SO had the purpose or desire since he was the SBA leader. He
desired to obtain money for the SBA.
Abandonment requires a full and voluntary renunciation. This was not allowed at
common law. This also does not apply her since SO has taken the last step. Moreover, it was
not a true change of heart since he left because he set off the alarm.
On balance, there is an attempt charge, and S would be culpable for it.
Death of Customer
AR
AR requires a positive of one's volition. AR is established by running and tripping. It also

involves all acts related to robbing the bank, including putting the gun in his pocket or hand. S
asserts that SO "tripped," suggesting it was not a positive act. Moreover, SO never pulled the
trigger. Under the MPC, a positive act is anything not involuntary (spasm, unconscious,
movement not of one's will, hypnosis). S asserts that SO's tripping was a spasm or movement
not of his will. However, the tripping likely resulted from his careless running, and thus there
would be a positive act looking at it from an earlier time frame.
Regarding omissions, there is no general duty to help. There is no indication that SO
tried to help after the shot went off. The bank customer might not have died instantly and thus a
peril would have been created.
Homicide
Homicide is the unlawful killing of another human being. There is no indication of

anything other than intent. Murder 1 and Voluntary Manslaughter would not apply. The killing
shot was not fired by SO. Moreover, SO did not pull the trigger and not likely tripped on purpose
to set the gun off.
Murder 2
grave bodily harm, and gross recklessness (implied malice).
and the conduct to be gross. SO conscious disregarded the gun since he brought it with him to
rob a bank. He must have known it was dangerous since the gun would scare people into giving
him the money. Carrying a gun around normally is a substantial and unjustifiable risk, and since
the gun went off, it was likely loaded. A loaded gun can easily go off accidentally, and since
bullets are often fatal, it is a substantial and unjustifiable risk.
The conduct must be gross. Under the Hand approach, the magnitude of harm must
outweigh the society utility. The probably of harm was high, since bank robberies are inherently
dangerous. Moreover, the type of harm is deadly harm, since it was an armed robbery. There is
no social utility in robbing banks, since that messes with the money of the people. On the other
hand, S asserts there are social utility to robbing banks if it is for a good cause (weak
argument). Moreover, the cost of alternatives might be to let "social justice" be ignored.
On balance the conduct was gross and reckless and S would be culpable for murder 2
(through SO).
IM requires mere recklessness or gross. Gross and recklessness are established above.
Negligence requires that the defendant should have known. SO should have known the effects
of a gun. Moreover, S should have known that people may get hurt when the group is carrying
out constant bank robberies. She should have known bank robberies are inherently dangers
and that guns are used. Moreover, she should have known that someone was bound to get hurt
since they were carrying out constant bank robberies.
Under dangerous instrumentality, a defendant who negligently uses a dangerous
instrument resulting in death is automatically culpable for IM. SO was negligent in using a gun
since he should have known of the dangerous of a loaded gun. Thus, S would be culpable for
IM through SO.
Felony Murder
Any death during the commission of a felony is automatic (constructive) murder. SO

committed the felony (bank robbery see above). Since bank robbery is BARKRM, it would result
in a charge of murder 1.
The doctrine is limited to inherently dangerous felonies, precluding some of the least
serious felonies. In the abstract, there are plenty of ways to rob a bank without actually shooting
anyone as fear alone can get the job done. However, bank robbery is BARKRM and may be
considered inherently dangerous even in the abstract. It was certaintly dangerous as committed
since someone died.
Under the merger doctrine, there must be an independent purpose as it precludes some
of the most serious felonies. Malice would have to be proved anyways for a bank robbery since
gross recklessness would have to be proved (see above). Thus, the felony likely merges even
though there's no intent to kill, and thus no FM.
The death also must be during the felony (it happened on his way out) and in
furtherance of the felony. Under the agency theory, defendant is only culpable for the acts of co-
felons. SO had no cofelons and the cops shot the bank customer and thus there would be no
FM. Moreover, SO dying certainly was not in furtherance of the felony since he is commiting the
felony.
An exception is the provocation act doctrine. SO created an atmosphere of malice by
firing the first shot. S argues that the first shot was accidental, but this likely does not matter
since it was still created by SO and the cops reasonably responded.
Under the proximate cause approach, defendant is only culpable for deaths that
proximately resulted from one's unlawful acts (see below)
Since SO died, some courts hold his death is justified since SO assumed the risk, life
was valued less, and not in furtherance of the felony. Other courts see his life as a human
being and S would still be culpable.
On balance, there is likely a FM charge and S would be culpable through SO.
Bombing the Police Car (and homicide of police officer)
Attempt
AR is established by looking on the internet, buying the materials, preparing the

chemical mixture, and approaching the police car. S has also taken the last step (which satisfies
all other tests) by trying to "detonate."
-Discuss all 5 approaches
MR requires purpose. S had the purpose since she feared the police cars and wanted to
protect her friends and herself. Some courts require purpose as to all attendant circumstances
(of the police car). Other courts require only purpose for the wrongful act of bombing, and she
would not have to know that and bombing anything is enough.
Impossibility applies when defendant has taken the last step and circumstances prevent
completion of the crime. Factual impossibility is not a defense, legal impossibiltiy is a defense.
State argues the fact that the bomb did not explode because she never made a real bomb is
factual impossibility. S argues there is no laws against making bombs that result in a small puff
of smoke. The courts would likely want to blame S since she was trying to destroy a police car
(which likely has a heavier penalty) and bombs are very dangerous. On balance, there is likely
no impossibility.
Under the MPC, there is no impossibility defense. If the circumstances were as S
believed, the bomb would have exploded and there would have been a crime. Thus S is
culpable for attempt. Since bombs pose a threat to public danger, there is no mitigation.
There is a separate impossibilty regarding the bombing of a police and killing of a polie
officer, which carries a heavy penalty. Since it was to film a movie, she likely could not have
killed actual police officers and actors instead even if she wanted to. State argues it was the fact
that no real police were there. Thus, there is also likely no impossibility defense.
Thus, S is culpable for attempted murder of a police officer and destruction of their
property as well as attempted bombing.
Necessity
evils. It requires 1) choice of evils, 2) no apparent alternative, 3) imminence, 4) lesser evil
chose, 5) not brought upon self, and 6) no contrary legislation.
The evils are joining the group and letting social injustice prevail or not joining the group.
There are lawful alternatives such as staging legal protests and not robbing banks (fund
raising instead).
Courts generally require here and now, some have relaxed. MPC looks at it as a factor.
S argues social injustice is ongoing and thus here and now.
Society likely did not agree that it was the lesser evil. Society likely values lives (since
someone died in the bank robbery) over social injustice (an intangible concept).
This was also brought upon S herself since she joined the group of hippy radicals. She
should have known they would do something radical.
On balance, there is no necessity defense. The only alternative is jury nullification out of
sympathy, and the prosecturo would strongly advise against using that argument.
Insanity
Insanity excuses a crime due to one's mental status at the time of the crime. It requires
S is sane or competant to stand trial and there is no indication she cannot.
Under M'Naghten, 1) defendant is presumed sane at the time of the trial, 2) and must
have a mental disease or defect, and 3) not understand the nature of his acts or that they were
wrong
Mental disease or defect is any abnormal condition of the mind substantially altering
mental processes and impairing control. Factors include number qualifying, history, symptoms,
stigma, sincerity, and brought upon self. S had symptoms of ADD, sleeplessness, emotional
disturbance, and convulsions. Moreover she was hearing voices. She has had a history of ADD
and emotional disturbance. SHe had seen doctors and taken medication. There was also fears
of police and she suffered trauma from seeing her friends die. The number qualifying is high,
since many children get ADD and other suffer severe paranoia. A stigma may be attached to
those with ADD. ADD is not easily faked and not likely brought upon self. On balance, there is
likely a mental disease.
S asserts she did know not understand the nature of her acts. Moreover she was in a
stupor. Her heart was pounding and the car “magically” appeared. She had been hearing voices
and tramautize by a tragedy. She was hallucinating and hearing voices. S argues she was trying
to get revenge. Her friends had died and the bombing was from her bad personality and she
knew what she was doing since she wanted to bomb police and she did. Moral wrong is legal
wrong. S likely knew they were wrong since she likely understood what her actions constituted.
Moreover, she was able to do many daily activities and survive without hurting anyone.
Under common law additions, the deific decree would not apply since she heard voices
from her friends and not God. Under the irresistible impulse test, S argues that she could control
herself since the police were right there and she still set off the bomb. State argues that there's
no indication the cops were right by her (just the car was parked there).
On balance, there is likely no insanity defense
Under the MPC, 1) and 2) are the same, and 3) defendant must lack substantial capacity
to appreciate the criminality or to conform to the law (see irresistible impulse above). She likely
had knowledge and emotional concern since she decided to blow up the cops and constantly
feared them.
On balance, she has a greater chance under the MPC.

DC allows the use of experts to show intent was not formed due to a lower mental
capacity. This is rejected in some courts.
Others allow it reduce a specific intent crime to a general one. There is likely no crimes
to reduce except for murder to manslaughter.
Under the MPC, a general intent can be reduce to no crime. Thus if experts show a
lower mental status, S has a DC defense.
Intoxication
Intoxication is alcohol or drug use causing prostration of mental faculties. It cannot be

used for liquid courage. State argues S wanted to bomb before the sleeping pill but there are
not enough facts.
Involuntary intoxication is a full defense and can be from deceit, force, or pathological.
There is a small chance that the paranoi is triggered by ADD and sleeping pills, and thus S has
a defense here since she took the sleeping pill to calm her nerves. Moreover, sleeping pills
cause people to sleep and S argues she was unconscious.
Voluntary intoxication was not allowed at common law. It now can only reduce a specific
intent crime down to a general one (see above). The MPC uses the same approach.
Defense of Others
S likely cannot assert this defense since her coworkers lacked imminence (traditional
approach) and was not reasonable for her to use force (since no indication the coworkers were
being attacked at that moment).
Self Defense
Self Defense is a necessity justifying the use of force when under unlawful attack. It
requires 1) honest and reasonable fear, 2) imminence, 3) of death of serious bodily injury, 4) no
excessive force, 5) duty to retreat, 6) not the initial aggressor.
S likely had a real fear of police. State may argue she wanted revenge on the police for
their raiding. Reasonable is one from defendants point of view and takes into account physical
attributes of everyone, prior experiences, and knowledge of the attacker. S had bad prior
experiences with the police since she saw what they have a done. Conversely, a reasonable
person would not fear law enforcement and think they would go around killig people.
Imminence can be here and now, reasonable (modern approach), or inevitable. The
police were not attacking anyone yet and S’s fears are not reasonable. Under the MPC, a
reasonable person in S’s position would also not believe the fear was imminent but more
inevitable.
At common law there was no duty to retreat. S however, was in her home and under the
castle exception has no duty to retreat. Alternatively, State argues she went outside of her
home.
S is not the initial aggressor since the police began the raid. Alternatively, the cop cars
and film makers did not raise it to a level violence. The earlier incident by the police will not
apply.
On balance there is no self defense claim.
Entrapment
Entrapment excuses a crime because of unfair government conduct. The informant

cooperatinged with the FBI and thus constitutes as a government agent.
The federal approach looks at disposition of the defendant. Evidence of her prior acts
with SBA can be used. She was likely predisposed to commit the crimes since she joined SBA
herself. S states she never wanted to commit bank robberies or kill anyone when she did. S can
bring a motion for outrageous police conduct but this almost always fails.
The California approach looks at conduct of the police. The police merely used an
attractive person, and this would unlikely induce an ordinary people to commit dangerous
crimes (of course this may be harder of Chou was extremely gorgeous). Under the MPC
conduct of the police goes to the police.
On balance, there is likely no entrapment defense.
2)
STATE (S) v. CROMWELL (C)
Death of George DeJungle (G)
AR
AR is established by "flailing" of C's arms and pulling the triger on the sedation gun. It
also includes "pouncing" on G.
Homicide
Murder 1
Murder 1 requires premeditation and malice. Premeditation is a cool deliberate thought.

C argues he was angry since his arms were flailing and had just been taunted. Generally people
who get taunted and a net thrown over them are angry.
Under the Carrol approach, purpose in addition to premeditation is required. No time is
too short and C could have had a cool deliberate thought the moment he pointed the gun at G
and pulled the trigger. Purpose is desire or aim. He targetted the gun. He wanted to sedate G
was attacking him.
Under the Anderson approach, preconceived design is also required, which looks at
purpose, motive, and manner. The manner was one shot of the sedation gun. The motive was
likely self defense and to subdue his attacker. There is likely no planning since the gun was
brought in by G and C and G were likely strangers before.
Murder 2
grave bodily harm, and gross recklessness. S asserts he did not have the intent to kill since he
used a sedation gun. Moreover, there was no use of deadly weapons involved. Hands alone
generally do not kill anyone. C also asserts that sedation guns do not cause grave bodily harm.
It does not cause any harm at all since all they do is just become subdued. S asserts that
sedation guns do fire needle like bullets and have the ability to severely injure someone. It can
easily knock an eye out or something. There is no indication of anything other than intent so
gross recklessness does not apply.
Manslaughter is the act of killing without malice. It requires actual heat of passion, legally
adequate provocation and no cooling time.
C was likely immediately anger since throwing a net on him (the provocation) and
taunting likely makes one mad, as demonstrated by his flailing arms.
Legally adequate provocation has several approaches. Categorical approach likely
applies since the net may constitute an extreme assault (or even illegal arrest). A reasonabl
person with his physical or in some courts emotional characteristics would likely have been
provoked since being taunted and having a net thrown over you would likely make one quite
angry, as well as afraid of something else happening.
There is likely no cooling time since C pounced on G and immediately grabbed the
sedation gun. S argues that he cooled down the moment he took control of the gun, however,
his anger was likely long smoldering since when G first alled him a beast.
Under the MPC there must be a reasonable excuse and subjective under extreme
emotional disturbance (EED). C is under EED since someone just died and his tiger is injured
too. MOreover he has a reasonable excuse since someone threw a net over him. This is not
likely because of his bad personality and thus he would likely have a manslaughter charge.
On balance, VM is established.
IM does not apply since there is no intent. He may be culpable for IM under a dangerous
instrumentality theory, since the sedation gun could be a dangerous instrument.
Causation
Causation requires actual (but for) or proximate (legal cause). But for C shooting the
gun, G would not have died.
Under proximate cause, S takes his victims as he finds him. Thus, it does not matter if
the extent of injury was foreseeable.
Intervening acts look at control and policy. Normal medical malpractice does not break
the chain. Thus, G would still be culpable. Moreover, even though the ambulance had control of
the situation courts would want to blame C.
Causation is established.
Self Defense
Self defense requires an honest and reasonable fear of death or seirous bodily injury.
There was no fear of death or serious bodily injury. The net does not kill anyone, and no
indication that G has the sedation gun. The fear was likely honest since a net was thrown over
him.
Imminence is established since it was here and now, even a reasonable person would
reuqire it is necessary.
Duty to retreat does not apply since he is in his home.
Excessive force was not used since sedation gun is genreally not deadly force.
On balance there is likely a self defense claim.
3)
Question 1
Under retribution, a mentally retarded person still has committed a crime and should pay
for their crimes. Under deterrence, a mentally retarded person cannot likely be deterred
because they lack mental capacity. A threat of death won't matter to them if they don't
understand it. Others argue that it could deter others to take better care of them or that retarded
people still have come capacity and can be deterred. Regarding incapacitation, a retarded
person can be prevented from commiting future crimes. However, there is no indication they will
do so in the future. On the other hand, there is no need to kill retarded people since life without
a parol equally incapacitates (unless they kill in prison). Rehabilitation does not apply since
mental retardation is genetic and likely cannot be cured. Some argue that retarded still have
learning capacity and can be fixed to lead normal lives. This is especially true if they are
executed, then they can't be fixed.
It is unfair to execute the mentally retarded. A basic sense of justice and morally by
societ seems to agree that killing the retarded is not fair because of a lower mental status. On
the other hand, a lot of criminals may be criminally retarded. The whole point of the criminal
justise system is to protect the public and thus protect them from people who are retarded and
may commit crimes. An argument can be made the the punishment is cruel and unusual since it
is too harsh for someone who is retarded. On the other hand, retarded people understand what
is going on and may not suffer as much pain if they are killed.
Regarding administrability, it may also be hard to determine who is retarded. A lot of
criminals are retarded and many more may have to be executed. Criminals may try to fake
retardation, since there are likely many definitions of retardation. This may result in over
criminlization which leads to stigma, discrimination by the police, resource diversion, dispect, or
ineffective deterrence.
A change in the law would also not be consistent. Courts prefer consistency. Currently
courts cannot change the law too often as currently mentally retarded offenders cannot be
executed.
Fall 2001
1)
STATE (S) v. FREDDIE (F)
Drunk Driving W/ No lights
F drank and drive. He had the actus reus (AR) by drinking then stepping into his car,
turning it on, and stepping on the gas. He has the purpose to drive since he wanted to follow
someone. Thus, drunk driving is established.
F also can be culpable for driving without his lights on. He intentionally did not turn it on
(omission) and purposely didn't because he desired to follow the "terrorists."
Driving without your lights may also be a strict liability crime. Though there is no mention
of a statute, S/L indicia include public welfare offenses (driving affects the public), large
numbers (a lot of people can forget), high prosecution burden (hard to prove people are driving
without their lights since it doesn't leave any evidence), highly regulated high risk industry (cars
are dangerous and highly regulated). Thus, it is likely a strict liability crime and F would be
automatically culpable of driving without his lights.
Hitting the Old Drunk
Attempt
crime. There is no indication the old drunk died, so this is likely an attempt for either homicide or
assault/battery.
Regarding AR, the first step is not used except in poison cases. The last step is used at
common law. The dangerous proximity approach looks at what has been done and what is left.
F has taken the last step and already hit the man. He would have a duty by omission to help,
but there is no indication he did. The unequivocal (res ispa loquitor) test looks in the abstract to
see if there is unequivocal intent. There is not an unequivocal intent to commit homicide. The
MPC combines the last two approaches and requires a substantial step corroborative of intent.
Since the last step has been taken, AR is established.
MR requires purpose. MPC allows purpose or belief. The hitting was likely accidental
since F didn't even "notice when he hits an old drunk." Thus, there is no MR.
On balance, there is no attempt.
Felony Murder and Misdemeanor Manslaughter
If the old man did die, F may be culpable for the man's death under a felony murder or
misdemeanor manslaughter (unlawful act) since drunk driving and not keeping one's lights on
are crimes.
Death of Benji (B)
AR
AR is established by driving, following, and pressing down on the button to activate the
pepper spray. Alternatively, A argues his foot was stuck to the pedal. Regarding omissions, there
is no duty to act. Once he hit the guy, he created a peril and he did not help the man at all but
kept on driving.
MR (homicide) - Murder 1
Murder 1 requires premeditation and malice. Premeditation requires a cool deliberate

thought. However, there is no purpose (desire or aim) to kill here. A pepper spray is not a deadly
weapon and F likely only wanted to protect himself. Moreover, he was likely angry since he was
"in his frenzy." The fact that he thinks the guy is a terrorist also likely enrages him.
Under the Carrol approach, purpose is enough and no time is too short. S asserts he
formed premeditation the second he pressed the button on the pepper spray.
Under the Anderson approach, preconceived design is required. The manner was one
button press. The motive was to injury and protect the country. There was also little planning
since he ran into randomly at the bar. S counters saying he was trying to "think about" what he
should do next.
On balance, there is no murder 1
Murder 2
bodily harm, and gross recklessness (implied malice). There is no intent to kill (see above). A
counter argument can be made that purpose is there since F did not help B after he sprayed
him, suggesting he wanted B to die, but this is a stretch depending on how quick B died. There
is an intent to cause grave bodily harm. F intended the spray since he aimed it "directly in the
face" and he wanted to protect himself and hurt a potential terrorist. The use of a pepper spray
suggest he did not want the man to die.
and the conduct to be gross. There is no indication of anything other than intent. He did not
consciously disregard a risk but had the purpose to spray it. S argues that intentionally
disregard the risk will also suffice for recklessness. Moreover, the risk is substantial because
pepper spray hurts a lot and seriously damages the skin. F defends that his acts were justifiable
in defense (see below).
Gross requires the magnitude of harm to outweigh the risk. The probably of harm is
great since pepper spray burns. The type of harm is low since there isn't death. Moreover, there
is social utility in allowing people to protect themselves and the alternative of simply running
(while cheaper) is not always safe.
On balance the conduct is not gross, but F would be culpable under murder 2 for intent
to cause grave bodily harm.
VM is killing without malice. VM requires 1) actual heat of passion, 2) legally adequate

provocation, and 3) no cooling time.
F was likely mad since he was in a frenzy. Moreover, he was likely angry at the man
since he thought B was trying to destory the country.
Under the categorical approach, F asserts his relatives will be injured, but this is a
stretch and will likely fail. Generally words are not enough and thus the scream of "are you
crazy" is insufficient. Though B flailed his arms, there is no indication that this is mutual combat
or extreme assault (no indication of contact).
Majority of courts us a reasonable person approach taking into account physical
characteristics (Camplin). F is smaller than B and B started to flail his arms. A reasonable
person would be provoked enough to use pepper spray.
Other courts account for emotional characteristics (Cassassa). Thus, F's anger and
frustration, as well as fear and frenzy will be taken into account. A reasonble person would more
likely be provoked enough to use pepper spray.
There is likely no cooling time. Even if he cooled while following them in the car after the
original provocation of talking in another language, the flailing arms rekindled any anger. F
asserts it also could be long smoldering.
Under the MPC, no provocation is needed, words suffice, and cooling allowed. F needs
to subjectively be under EED, which he is due to his "frenzy" and have a reasonable excuse. A
reasonable person in F's situation, while on drugs and alcohol, fearing Middle Eastern people
while seeing flailing arms would resort to using a pepper spray. S argues that F did it because of
his abnormal personality and bad morality.
On balance, there is likely VM.
IM requires mere recklessness (see above) and gross (see above) negligence. There is
no indication of anything other than intent. Negligence requires defendant should have known. It
would be hard to say that F should have known that pepper spray is deadly. The whole point of
it is to disable and not to injure.
Under dangerous instrumentality, F would be automatically culpable for IM if pepper
spray is a dangerous instrument. Do to the amount of damage it can do to the skin, it likely
qualifies as a dangerous instrument.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for using the pepper
spray, B would not have died.
Proximate cause look at foreseeability and intervening causes. Intervening acts look at
foreseeability and control and policy. S must take his victims as he finds him. Thus the allergic
reaction does not break the chain. Moreover, third party omission of others by the doctor
generally do not break the chain, even if there is a duty. Though danger invites rescue, doctors
off duty do not have a duty to help people. Dr. Joe was in his apartment and thus off duty. F had
control of the situation (he could have called for help), and courts would want to blame him.
Moreover, the courts do not approve of vigilantes.
Thus, causation is established.
Mistake of Fact
Mistake of fact is a defense if it negates the mens rea of a material element. Though F
made many mistakes throughout the night, he asserts that the worse thing that could happen for
driving without a light is getting a ticket when he could be charged with a misdemeanor or a
felony for drunk driving and not turning on his lights and hitting someone. However, what you
need to know is what makes your conduct wrong, and he knows it is wrong to keep his lights off.
Thus, there is likely no mistake of fact defense.
Insanity
Insanity excuses a crime due to one's mental status at the time of the crime. Defendant
also must be competant to stand trial, and since he is "babbling to himself" when he was
arrested, it is possible that he might not be able to consult with his attorney or understand the
proceedings against him.
M'Naghten 1) presumes sanity at the time of the offense, 2) mental disease or defect,
and 3) does not understand the nature of his acts or that they are wrong.
Mental disease or defect (a legal concept) is any abnormal condition of the mind
substantially affecting mental proccesses and impairing control. F had a history of 9/11
syndrome and one of talking to God. he has symptoms of sleeplessness, seeing images of 9/11,
headaches, and sensitivity to loud sounds. Furthermore, he takes meditcation for it. There is not
likely bad stigma attached to the tragedy of 9/11. Though the number qualifying is great, F did
not likely bring this upon himself. His symptoms are easy to fake, but there is no indication that
he is. On balance, there is likely a mental disease.
F argues that he did not know what he was doing at all. He was hearing voices at the
time (Allah be praised) when facing B. Moreover, he was having flashbacks and images of
friends crashing in his mind. Thus, F asserts he was hallucinating since he "doesn't notice" the
man moving away or anything else going on. S argues that he does know what is going on
since he is faking. F had purpose to kill the middle eastern man since he wanted revenge. Next,
F had to know what he was doing was wrong since his acts are in accord with his personal
motives to hunt down those people. Lastly, S asserts this is just racism and not insanity.
Moreover, S asserts this is something inconsistent in the facts. It is impossible for the man to
step away from him and also get directly sprayed in the face (suggesting the guy was up close).
F makes a counter that he did not know what he was doing was wrong since afterwards he was
babbling and looking for medication. He showed no indication he felt bad or sorry.
Common law additions include the deific decree. F asserts that he is insane as he is
hearing voices from God and talks to God and would thus get an insanity defense. S argues that
this is just normal prayer.
The irresistible impulse (police at elbow) test allows a defense if one could not control
himself even if he wanted to. This defense will not likely work since F had the purpose and
desire to shoot the spray. Moreover, there is no indication he suddenly lost control of his hand.
He wanted to hurt a middle eastern man and he did.
Under the MPC, 1) and 2) are the same and 3) defendant must lack substantial capacity
to appreciate the criminality or comform to the law (see irresistible impulse above). F asserts he
lacked capacity from his hallucinations. S asserts he had knowledge and emotional concern
(fear, anger) and thus appreciated the wrongfulness of his acts.
On balance, there is likely no insanity under M'Naghten but has a much greater chance
under the MPC.
DC is a particial defense allowing experts to show no mens rea was formed due to a
lower mental status. This is rejected in some courts.
Other courts allow a reduction from a specific intent to a general intent crime. F may
mitigate from murder to manslaughter with a DC defense.
MPC allows it to reduce from general intent to nothing and thus can get a full defense
using DC.
Intoxication

used for liquid courage. S argues he formed the intent before he drank. This is unlikely since he
only brought pepper spray for defense (pepper spray is generally a defensive weapon), and
intended to follow them. S also argues he had good mental capacity as F was able to drive and
follow someone and know how to use the pepper spray. S argues he couldn't since he actually
did hit someone while driving and stumbled. Moreover he knew he should call a friend, and thus
formed the mens rea before he got into the car.
Involuntary intoxication is a full defense and can be from force, deceit, or pathology. It is
likely that F took the relaxation medicineand drank all on his own (unless there is some drug on
drug pathology effect).
Voluntary intoxication is not allowed at common law. It can reduce a specific intent down
to a general one (see DC above). MPC follows the same approach.
On balance, there is no intoxication defense.
Self Defense
Self defense justifies the use of force when under unlawful attack. It requires 1) honest
and reaosnable fear, 2) death or serious bodily injury, 3) imminence, 4) no excessive force, 5)
duty to retreat, and 6) not the initial aggressor.
F had an honest fear since he honestly saw a flash of metal. Reasonableness looks at
one in defendant's situation and takes into account physical characteristics of everyone,
knowledge of attacker, and prior experiences. F was much smaller (by 30 pounds and 4 inches
lower). Moreover he knew that Middle Eastern people could be dangerous due to 9/11 and had
saw a flash of mental. A reasonable person would fear and think to use force. MPC looks to see
if defendant reasonably believed force was necessary, and F likely would have.
There was no threat of death or seriously bodily injury. Glimpse of metal could have
been a weapon, keys could have been a weapon, but it is not deadly.
Imminence can be here and now, reasonable, or inevitable. Courts generally use the
reasonable person approach, and a reasonable person in F's position would have believed it
was imminent since they were likely very close in proximity and the weapon (keys) was in B's
hand. MPC looks to see F reasonly it was imminent and this is likely true since they were likely
very close in distance.
There was no excessive force used. Neither used deadly force. Pepper spray generally
injures but does not kill.
Duty to retreat was not required at common law. It does not apply here since no deadly
force was used.
Though F may be the intial aggressor by following, he asserts that the flash of metal
makes B the initial aggressor, or one who raises it to a level of violence. S asserts that F was
mistaken and when brings out the pepper spray, he was the initial aggressor.
On balance, there is a self defense claim. Even if there is not, some courts allow
imperfect self defense to mitigate from murder to manslaughter
Necessity
Necessity justifies a crime (lesser of 2 evils defense) because it is the lesser of 2 evils. It
requires a choice of evils, no apparent alternative, imminence, lesser evil chosen, not brought
upon self, and no contrary legislation.
The evils are let the terrorist attack America or follow Freddie. The evil may also be
looked at as let B attack F or allow F to attack B before he gets attack (see self defense).
There are likely lawful alternatives since he can persuade government to crack down on
terrorism or put more money into defense.
Imminence requires here and now; some courts have relaxed it. MPC looks at
imminence as a factor. The attack was likely not imminent. It might occur in the future but this
might not even be true.
The lesser evil must honestly and reasonably be chosen. F likely believed it was, though
S argues he had other motives of getting revenge on terrorists. The harm avoided must be
greater than the harm caused. In the aftermath of 9/11, people might actually agree that it is
better to kill innocent Middle Eastern people. However, courts will strongly disagree. Lives are
worth more than simply following someone. S asserts that the lives of people in America are
also involved and thus lives can't be compared. Necessity cannot be used for homicide in
majority of situations. MPC and other courts allow more lives to be saved. Thus, F asserts that
he is saving more lives by hurting this one guy.
There is likely already contrary legislation since courts do not allow vigilantism.
On balance, there is no necessity defense. The only alternative is to allow jury
nullification out of sympathy. The prosecutor will argue strongly against alowing this argument.
There is another necessity defense for not turning his lights on. The choice of evils are
turning hits lights on, or letting the people know they are being followed. This can be extended
to let the terrorist succeed in the plans, or following them to discover their plans. However, the
threat is also not imminent and there is likely contrary legislation against vigilantism.
Defense of Others
Traditionally, one stands in the shoes of others. This does not apply since people in
American lack imminence for an impending attack. Modern courts require one to be reasonable,
and it is not reasonable to kill random Middle Eastern people because of 9/11.
Defense of Property
Deadly force cannot be used to defend against property. However, there is no indication
the terrorist would actually attack F's property, though F may believe so. There is likely no
defense of property.
STATE v. Dr. JOE (J)
Death of B
Accomplice liability is helping another commit a crime. It is not a separate crime but a
theory of culpability for the substantive crime of homicide.
AR requires help. J helped by giving the thumbs up since. This is an act of
encouragement which is enough. Help can also be established by omission if J had a duty to
help. However, J was off duty and in his house and likely had no such duty.
Principal does not have to be aware, however in this case, if the principal is not aware,
there is no help. There is no indication that F saw the thumbs up. J asserts that the fact the help
must be capable of helping (no attempted complicity at common law). Under the MPC, there is
attempted complicity.
MR requires knowingly help with purpose for the crime to succeed. S asserts that J must
have known since he saw what happened. Moreover, J had the purpose since he saw it was a
potential Arab terrorist and wanted the man to die. However, J has no stake in the venture and
no nexus to F as they are likely strangers. Knowledge is sufficient in some courts for dangerous
crimes, and it is arguable that since someone was dying, this was dangerous. Knowledge may
be sufficient in some courts as criminal faciliation, and thus J may be culpable for that.
On balance accomplice liability is established and J would be culpable for the
substantive homicide charge.
2.)
S. v. SALLY (SA) and MARIA (M)
Cloning
Conspiracy
Conspiracy is the crime of agreeing to commit crime. It is a separate and inchoate crime.
AR is established by express or implied agreement. SA and M "agree" to start the
company. Moreover, their concerted action of "they" in seeking approval, starting their venture in
secret, and convincing the HHS secretary suggest agreement.
Common law did not require overt acts. Some courts now require an act (legal or not) by
any coconspirator carried out for the purposes of the conspiracy. SA lying the tax forms suffices.
Some courts don't require an overt act if it is dangerous, but cloning is unlikely to be dangerous.
Alternatively, S argues it is since legislature specifically updated the laws for it to be dangerous.
MR requires knowing agree with purpose for the crime to suceed. They all must have
known they agreed since they work together. Moreover, they had purpose to agree since they
are all likely paid money for it via salaries. Knowledge is sufficient in some courts, but cloning is
generally not considered dangerous and would not apply.
Pinkerton liability holds automatic coconspirator liabilit for all crimes carried out in
furtherance of the conspiracy. SA lied on tax returns to help everyone hide their venture so they
can continue in secret. Thus, under Pinkerton, both SA and M are culpable for tax evasion. This
is rejected under the MPC and only SA would be culpable for it. Moreover, it is foreseeable that
they would eventually start cloning or that accidents may occur along the way. Thus, SA and M
may be culpable for the later cloning charges and homicide.
Abandonment only applies to M. At common law, one can avoid further coconspirator
liability if one informs coconspirators and has a full and voluntary renunciation. M likely had a
true change of heart since she is risk adverse. However, there is no indication that she told the
group. Leaving the group might entail actually telling them, but this is ambiguous in the facts.
Thus, she might have an abandonment defense here.
Under the MPC, one can also avoid the original conspiracy if one thwarts the crime,
which M did not do, nor did she notify the authorities. Thus M and A is still culpable for the
conspiracy charge and the tax charge. Depending on abandonment, only A might be culpable
for the later homicide charges and cloning crimes.
Accomplice (defined above)
SA and M likely helped each other out in many ways, from filing paperwork and doing all
work necessary to start their business. The activites done are simply stated as "they" started or
they called or they convinced, suggesting they helped each other out to establish AR.
MR requires knowing help with purpose for the crime to succeed. They all have a nexus
with each other as business partners and likely share to profits to infer prupose. Moreover, they
all must have known what they were doing since they agreed on it. Knowledge may be sufficient
in some courts as criminal faciliation, and tus SA and M may be culpable.
Under the reasonably foreseeable doctrine, it is foreseeable that one would lie on tax
returns to hide their venture. It is probably that they start cloning and accidents occur. Thus,
they may be culpable for all those crimes under accomplice. This is rejected under the MPC and
thus would not apply.
Abandonment was not allowed at common. M likely has no abandonment defense (see
above) as she made no efforts to stop the crime.
On balance, SA and M are culpable for tax evasion, homicides, and cloning charges
(unless abandonment applies for M).
Death of Embryos
Homicide
Homicide is the unlawful killing of another human being. Embryos are generally not
human beings but cells. The legisltaures generally get to decide what constitutes as human
beings. There is no indication of exactly how many embroys died, and thus M and SA may be
culpable for the deaths of these cells
Death of Scientist
Homicide
There is no indication of anything other than intent, thus murder 1, murder 2 (except
gross recklessness part), and voluntary manslaughter does not apply. They hired the scientist
and want him to work, not die.
Murder 2
Murder 2 (defined above) requires gross recklessless. M and SA likely did not conscious
disregard the risk since they didn't know about the statute that says it was dangerous. Generally
research is relatively safe. S argues they knew about the misdemeanor, but that statute makes
no indication that a risk of injury is involved. However, S asserts that cloning injuries involves
humans (if embroys are humans) and chemicals and thus explosions may occur.
Gross requires magnitude of harm to outweigh the risk. The probability of harm is low,
since they're just doing research. The type of harm is low since only cells die. Social utility is
good too since research benefits society. They could figure out how to replace people who have
died or something. On the other hand, type of harm is great if the cells are humans. Moreover,
the probabiltiy of some of those cells dying is high, since they likely use a lot and not all live.
Moreover, society has determined it doesn't benefit society since it could be morally
objectionable.
On balance, the conduct is gross but not reckless and there is no murder 2.
IM
IM requires that the defendant should have known (defined above). SA and M should
have known embroys are dangerous, however this is just research with cells and not likely true.
They are also not likely dangerous instruments (the scientist is unlikely a dangerous instrument)
and thus not culpable for IM. S argues they should have known research involves chemicals
and can be dangerous. Lastly, the death is described as an "accident."
On balance, SA and M are not culpable for the death of the scientist
Causatoin
Causation is defined above. But for MA and S starting the company, that scientist would
not have died. It may be a stretch to say that the scientist would have been hired elsewhere and
conducted the same research and did everything the same way, leading to an explosion and his
death.
Proximate cause looks at foreseeability and intervening cause. The accident was
foreseeable since accidents happen. Moreover there were no intervening causes.
On balance causation is established.
Crime of Attempting to Cloning without permission
Strict liability (S/L)
The default level (in USC 6264) is recklessness since no mens rea is listed. However,
S/L also requires no mens rea and is rejected by the MPC. It looks at 1) statutory language, 2)
legislative intent, and 3) policy. The fact that mens rea (knowingly) was added later suggest it
was purposely left out here, supporting the fact that it is S/L. Moreover, legislatures thought it
was morally objectionable and could pose dangers.
S/L indicia include public welfare offenses (legislatures thought it could pose dangers to
human life), morality offenses (cloning was morally objectionable), low penalties (only max 6
months in jail), high prosecution burden, large numbers (a lot of companies do cloning
research). On balance it is likely an S/L and MA and S would automatically culpable of this
crime.
If the default level is recklessness, there is likely no conscious disregard since they
specifically asked their lawyer to obtain permission.
Mistake of Law
Mistake of law (ignorance) of the law is generaly not a defense. The exceptions include
no mens rea, estoppel theories, and Lambert. SA and M assert they lacked the mens rea since
their lawyer negated their mens rea. However, if it is a S/L, the defense will not apply.
M and SA also assert that the law was changed after they had attempted to clone. Thus,
thus a new statute was made and thus they should not be punished for it. However, they
continued to clone even after the new statute.
There is no mistake of law regarding section 6265. Their ignorance of the law in that
aspect is not a defense.
Mistake of Fact
Mistake of fact is a defense if it negates a material element. What you need to know is
what makes your conduct wrong. There is likely nothing wrong with cloning. Thus, SA and M
likely needed to know that there waws a risk to life to the embryo or those exposed to it. SA and
M assert that they did not know this, but this is hard to believe since many embryos likely die
during experimentation.
On balance, there is no mistake of fact defense.
Attempt (to clone, section 6265)
Regarding AR, the first step is generally not used. The last step was used at common
law. Dangerous proximity looks at what has been done and what hasn't. They have hired the
scientist, and taken "more than half the steps" slightly for cloning. Thus, about half was still left.
AR is likely established. Unequivocality (res ispa loquitor) looks in the abstract to see if there is
unequivocal intent. Hiring a scientist is unequivocal. He can do research for many things. MPC
combines the previous two steps and requires a substantial step corroborative of intent. They
have taken a substantial step by hiring the scientist and ordering him to do research. This
shows their intent that they want to do research (and risk the lives of embroys in the process).
Thus, AR is likely established.
MR requires purpose. MPC requires purpose of belief. They had the desire to clone
since it was their desire to stay on the cutting edge of technology as well as make profits.
Impossibility applies when defendant has taken the last step. S asserts they have
already taken the last step by trying to clone with a risk to the embroys. Factual impossibility is
not a defense. Legal impossibility is a defense. S argues that it was impossible because of the
fact that others could not do it. SA argue there is no law against trying to clone embroys if it is
not possible. There is also the problem of whether it is really impossible. Just because others
failed does not mean SA would.
Under the MPC there is no abandonment defense. If the circumstances were as the
defendants believed, there would be a crime since they did attempt to clone. Thus they would
be culpable for attempt. Research generally poses no public danger (though S argues it poses a
danger to the embroys) and thus there would likely be mitigation.
On balance, attempt is established and SA and M would be culpable for attempt to
violate section 6265.
Felony Murder (FM)
Any death during the commission of a felony (see attempt above) is automatic murder.
Since they commited a non BARKRM felony, it would result in murder 2.
FM is limited to inherently dangerous felonies and precludes some of the least serious
crimes. In the abstract, cloning is not dangeorus and many ways of cloning can be done without
killing anyone (assuming embroys are not human). Alternatively, the crime was dangerous as
committed since both embroys and a scientist died.
The merger doctrine precludes some of the most serious crimes and requires an
independent purpose other than to just kill. Malice should not have to be proved anyways.
Gross recklessness is also not required (see above). Thus, the felony likely will not merger.
The death also must be during the felony (it was during the research to clone) and in
futherance of the felony. The death of the scientist is not in furtherance of the felony.
On balance, there is likely FM resulting in murder 2.
MM or the unlawful act doctrine says any unlawful act not a felony resulting in death is
automatically IM. The misdemeanor is committed (see above) regarding trying to clone without
permission. It is limited to dangerous acts, proximate cause, and mala in se. Cloning is not
dangerous generally (it is to embroys), and not bad in itself as it is a regulatory offense.
Morover, not getting permission is likely not a proximate cause. It is not foreseeable that not
getting permission has any effect on an accidental explosion.
On balance, MM would not be estalished.
Entrapment
Entrapment is an excuse due to unfair government conduct. Isa (I) is a government
informant and suffices for the government
The federal approach focuses on predisposition of the defendants. Thus the prior acts of
SA and M can be brought in, including their prior business acts. SA and M can bring a motion to
dismiss for outrageous conduct, but no indication of I's acts are stated, and this motion almost
always fails.
The California approach focuses on government conduct and whether it would induce a
normal person to commit crime. SA actually lied on taxes by herself. Moreover, there is no
indication Isa convinced them to do anything, though since they were in a joint venture, she
could have. Moreover, the FBI was likely not worried (the company was behind) so they likely
did not use any otrageous conduct.
Under MPC, conduct goes to the judge. On balance, there is likely no entrapment
defense.
S. v DR. KNOW (K)
Selling Lab Equipment/Cloning Charges
Conspiracy
Conspiracy is defined above. K can join the conspiracy later. However, he likely does not
know that they are cloning. Selling materials may include embryos, and thus he would know. If
he is merely selling other lab supplies, then it is unlikely he would know of their conspiracy.
Since he is a lab equipment "wholesaler," it is possible he only sells lab equipment and not
actual embroys. He does have a stake in the venture since he is being paid excessively. The
gross disproportionate sale (even though there is a legitiate use) allow an inferrence of purpose
for the crime to suceed. Some courts require just knowledge, but selling lab supplies is likely not
dangerous and nor is cloning. On balance, MR is not likely established.
AR requires an agreement. His shiping of the supplies indicate concerted action, as well
his acceptance of payment.
Under Pinkerton, K would be culpable for the resulting homicide charges and cloning
charges. He would also be culpable of a conspiracy charge as well. This is rejected by MPC.
Accomplice
AR requires help. K has helped by providing the lab materials.

MR requires knowing help with purpose for the crime to succeed. He might not know
about the plans of the company, especially if he merely delivers the supplies. S argues they
could have known because the name of the company they sold it to was MiniMe's, but that is a
stretch. Purpose can be inferrred by stake in the venture, and they are paid handsomely,
doubling their business.
Under the reasonably foreseeable (rejected by MPC), K would also be culpable for the
homicide and cloning charges as they are natural and probably causes. It is foreseable they
would use the supplies (and maybe embryos) provided to clone.
Black Letters
Actus Reus (AR)
AR requires a positive act of one’s volition. Under the MPC, anything not involuntary
(spasm, unconscious, hypnosis, movement not of one’s will) is a positive act.
Regarding omissions, there is no general duty to act. Exceptions include
status/assumed/contractual/statutory relationship, and creation of peril (positive or omission).
Mens Rea (MR)
Purpose requires desire or aim. Knowledge is virtual or practical certainty. Willful

blindness (ostrich defense) also suffices. Recklessness requires a conscious disregard of a
substantial and unjustifiable risk. Negligence requires the defendant should have known.
S/L requires no mens rea and is rejected by the MPC. Normally the default is reckless
when no mens rea is mentioned. To determine if S/L applies, courts look at 1) statutory language,
2) legislative intent, 3) policy.
S/L policy indicia include morality and public welfare offenses, high prosecution burden,
large numbers, low penalty, highly regulated or high risk industry.
Mistake of Fact
Mistake of fact is defense when it negates the MR of a material element. What you need
to know is what makes your conduct wrong. Jurisdictional elements look at 1) statutory
language, 2) legislative intent, 3) policy.
Mistake of law
1) negates mens rea, 2) estoppel, 3) Lambert exception. Cultural defense is no defense.
Homicide
Murder 1

thought.
Under Carroll, purpose is enough and no time is too short for premeditation.
Under Anderson, purpose and preconceived design is required. Preconceived design
looks at motive, manner, and planning.
Murder 2
Murder 2 requires malice and is a dumping ground for when premeditation and heat of
passion is lacking. Malice is intent to kill (express malice), intent to cause grave bodily harm, or
gross recklessness (implied malice).
Gross requires the magnitude of harm (type of harm/probability of harm) to outweigh the
social utility (benefit to society/cost of alternatives).

Under the categorical approach, only extreme assault, injured relative, mutual combat,
illegal arrest, and observed adultery suffice. Words generally are not enough.
Majority of courts use physical characteristics of a reasonable person (Camplin).
Other courts account for emotional characteristics (Cassassa).
No cooling time requires the act to immediately follow provocation while inflamed. The
exceptions are long smoldering or rekindling.
Under the MPC, no provocation is needed, can have cooling, and words suffice.
Defendant must be under extreme emotional distress (EED) and have a reasonable excuse.
Reasonableness looks at one in the defendant’s situation. The excuse cannot be from the
defendant’s bad personality or moral idiosyncrasy.
IM requires mere reckless (see above) and gross (see above) negligence. Negligence
requires the defendant should have known.
A defendant who causes death when handling a dangerous instrument is automatically

culpable for IM.
Felony Murder (FM)
Any death during the commission of a felony is automatic (constructive) murder. All
BARKRM is murder 2, all others result in murder 2. The felony must be proved.
The inherently dangerous doctrine limits FM to inherently dangerous felonies and
precludes some of the least dangerous felonies. The felony can be viewed in the abstract or as
committed.
The merger doctrine requires an independent purpose than to just kill and precludes some
of the most dangerous felonies. Malice should have to be proved anyways.
The death must also occur during and in furtherance of the felony.
Under the agency theory, defendant is only culpable for acts of cofelons.
The exception is provocation act doctrine, which holds him culpable if he creates an
atmosphere of malice.
Under proximate cause (shield causes), defendant is culpable for any unlawful act that
proximately results in death.
If a cofelon dies, courts rule his death as justifiable because he assumed the risk, his life
is worth less, and his death is not in furtherance of the felony. Alternatively other courts view his
life as still one of human life.
MM or unlawful act doctrine, states that any unlawful act not a felony resulting in death
is automatically IM. The misdemeanor must be proved. MM is limited to 1) dangerous acts, 2)
proximate cause, and 3) mala in se.
Causation
Causation requires actual (but for) and proximate (legal) cause.

Proximate cause looks at foreseeability and intervening acts.
Intervening acts look at foreseeability and control and police.
Attempt
AR has several approches. The first step is not used except in poison cases. The last step
was used at common law. Dangerous proximity looks at what has been done and what is left.
Unequivocality (res ispa loquitor) test looks to see if act shows unequivocal intent in the abstract.
MPC combines the previous 2 and requires a substantial step corroborative of intent.
MR require purpose. MPC allows purpose or belief.
Impossibility applies when defendant has taken the last step but circumstances prevent
completion of the crime. Factual impossibility is not a defense, but legal is. Hybrid cases look at
dangerousness and who we want to blame.
Under the MPC, there is no impossibility defense. If the circumstances were as the
defendant believed and there is a crime, then there is attempt. If there is no public danger, then
defendant can have mitigation.
Abandonment was not allowed at common law. Some courts now allow a full and
voluntary renunciation.
Accomplice
Accomplice liability is the crime of helping another commit a crime. It is not a separate
crime but a theory of liability for the substantive crime. Common law distinctions have been
removed and all accomplices have the same punishment except accessory after the fact.
AR requires help. Mere presence is not enough without prior agreement. Help does not
have to make a difference. Words can be enough. Help can be by omission. Principal does not
have to be aware. Help needs to be capable of helping (rejected by MPC, no attempted
complicity).
MR requires knowing help with purpose for the crime to succeed. Purpose can be
inferred from stake in the venture or nexus. Knowledge is sufficient for dangerous crimes.
Knowledge is sufficient in other courts for criminal facilitation.
MPC requires purpose to promote or facilitate the commission of the crime.
Negligent attempt cases require purpose to help and negligent regarding the results.
Under MPC, accomplices only need the same MR as the principal.
Courts are split on S/L attempt cases (rejected by MPC) but generally still require
purpose.
Reasonably foreseeable doctrine holds defendant culpable for all normal and probably
consequences. This is rejected by the MPC.
Abandonment is not allowed at common law. Some courts (MPC) allows a full and
voluntary renunciation with efforts to stop the crime or notification of police.
Conspiracy
AR require an express or implied agreement (concerted action) between qualified
defendants. Gebardi rule protects victims. Wharton rule precludes conspiracy if the crime
inherently requires 2 people. Bilateral rule (plurality requirement) requires 2 guilty minds and
unilateral (MPC) requires one.
An overt act was not required at common law (still not needed for serious crimes in some
courts). Other courts now require an act (legal or not) by any coconspirator carried out for the
purpose of the conspiracy.
MR requires knowing agree with purpose for the crime to succeed. Mere suspicion is not
enough. Purpose can be inferred from stake in the venture, no legitimate use, or grossly
disproportionate business. Knowledge is sufficient in some courts for dangerous crimes.
Pinkerton Rule holds automatic (vicarious) culpability for any crime done in furtherance
of the conspiracy. This is rejected by the MPC.
Under a wheel conspiracy, multiple conspirators work with one middleman to create
multiple conspiracies. It is arguable that they each old a vested interest in the common venture to
create one conspiracy. A chain conspiracy has a single conspiracy with different roles along a
distribution line all for one operation. Hybrid cases look at the whether groups know the extent
of the conspiracy and benefit from it. Braverman rule states that an agreement with multiple
objectives is one conspiracy.
Abandonment was allowed with a full and voluntary renunciation and coconspirators are
notified to avoid further coconspirator liability.
MPC allows the same (can also notify police) but allows one to thwart the crime to avoid
the original conspiracy charge.
Self Defense (SD)

SD is a necessity justifying the use of force when under unlawful attack. It requires 1)
honest and reasonable fear, 2) death or serious bodily injury, 3) imminence, 4) no excessive
force, 5) duty to retreat (some jursidctions) and 6) not the initial aggressor.
Reasonableness looks at one in defendant’s situation and takes into account physical
characteristics of everyone, prior experience, and knowledge of attacker. MPC looks at if
defendant reasonably believed force was necessary.
SD is allowed for BARKRM in some (MPC) jurisdictions.
Imminence can be here and now, reasonable or inevitable. Reasonable generally used
(defined above). MPC looks to see if defendant reasonably believed it was imminent.
Deadly force can only be used against deadly force. Some courts allow it against
BARKRM (MPC).
Duty to retreat was not required at common law. It applies now only at the time of the
attack, when deadly force is being used, and it is reasonable to retreat to safety (unless in one’s
home, castle exception).
The initial aggressor is one who raises it to the level of violence.
Some courts allow an imperfect self defense to mitigate from murder to manslaughter.
Defense of Others
Traditionally, defendant stood in the shoes of others. Modern courts require defendant to
be reasonable.
Defense of Property
Deadly force is not allowed to defend property (was at common law). Moderate force is
required.
Law Enforcement
Police cannot use deadly force to apprehend a suspect unless the suspect poses a threat of
danger to others.
Necessity
There must be no lawful alternatives. Defendant must surrender immediately upon safety
in prison escape cases.
Imminence is here and now though some courts relax it. MPC looks at it as a factor.
Lesser evil must be honestly and reasonably chosen. Lives are greater than property.
Homicide was not allowed (majority); other courts allow more lives to be saved over fewer lives
(MPC). The harm avoided must be greater than harm caused from society’s view.
MPC allows one to bring it upon self but still culpable for original negligence.
If necessity fails, the only alternative is jury nullification out of sympathy. The prosecutor
will strongly argue not to allow this argument.
Duress (common law)
Duress excuses crimes committed under compulsion. It requires 1) threat of death or

serious bodily injury, 2) imminence, 3) to defendant, 4) that a man of ordinary courage and
fortitude would yield, 5) not brought upon self, and 6) not for homicide.
Imminence requires here and now though some courts relax it.
Later common law added close family and friends.
Duress (MPC)
Duress requires 1) unlawful threat to anyone, 2) that a man of reasonable firmness would
yield, 3) not brought upon self (see above).
Imminence and type of harm are factors on a sliding scale.
There is no more imperfect duress.
Insanity
Insanity excuses a crime due to one’s mental status at the time of the crime. Defendant
also must be competent or sane to stand trial. He needs to understand the proceedings and be able
to consult with his lawyer.
The M’Naghten 1) presumes sanity at the time of the offense, 2) requires a mental disease
or defect (legal concept) and 3) does not understand the nature or quality of his acts or that they
are wrong.
Mental disease is any abnormal condition of the mind substantially affecting mental
processes and impairing control. Factors include history, symptoms, number qualifying, stigma,
sincerity, and brought upon self.
Common law addition include irresistible impulse (police at elbow) test. Defendant is
insane if he could not control himself even with a police nearby.
Deific decree applies if defendant is hearing voices from God.
Under MPC, 1) and 2) are the same as M’Naghten and 3) defendant lacks substantial
capacity to appreciate the criminality or conform to the law (see irresistible impulse above).
Appreciate is knowledge and emotional concern.
DC allows use of experts to show mens rea was not formed due a lower mental status. It
is rejected in some courts.
Other courts allow it to reduce a specific intent crime to a general one. Specific intent
looks at mens rea language, historical name, and if a lesser crime exists.
MPC allows it to reduce it from a general intent crime to no crime.
Intoxication
used for liquid courage.
Voluntary intoxication is not allowed at common law. It can reduce a specific intent crime
to a general one (see above).
The MPC uses the same approach.
Entrapment
Entrapment excuses a crime due to unfair government conduct. Any informant or one
who cooperates with the government can suffice as a government agent.
The federal approach focuses on the predisposition of the defendant. His prior bad acts
can be brought in. Defendant can file a motion to dismiss for outrageous government conduct but
this almost always fails.
The California approach focuses on government conduct and if it would cause a normally
law abiding person to commit a crime.
Under the MPC conduct goes to the judge.
Death Penalty
Pros include deterrence, incapacitation to prevent future murders, history, and upholding
the sanctity of life.
Cons include discrimination, no proven deterrent, cost, life without parole equally
incapacities, and lower sanctity of life.
Bifurcated trials must be used. Special jurors that only allow the death penalty under
circumstances may be used. Courts cannot execute minors or retarded people. There cannot be a
mandatory death penalty and mitigating/aggravating circumstances must be used.
Spring 2003 Levenson
1)
STATE (S) v. DUMBSFELD (D)
Death of the people in the safe room
Actus Reus
AR requires a positive act of one's volition. AR is established by skipping the pages,

drawing the safe room, and constructing the safe room. Under the MPC, a positive act is
established by what is involuntary (spasm, unconscious, hynposis, movement not of one's will)
and none of these qualify, thus it is voluntary.
Regarding omissions there is no general duty to act. D likely has an assumed duty in
building a safe room for others to follow instruments. Omission is established both by failing to
read and failing to help others once they suffocate in the room (creation of peril), which can be
seen as a positive act or an omission. D argues he felt woozy too so could not help them.
Homicide
Homicide is the unlawful killing of another human being. There is no indication of

anything other than intent, so murder 1 and voluntary manslaughter does not apply. D decided
to build the safe room "for himself and his friends" to help them, not to hurt them.
Murder 2
premeditation or heat of passion. It requires 1) intent to kill (express malice), 2) intent to cause
grave bodily harm, or 3) gross recklessness (implied malice). There is no indication of intent
(see above).
Gross recklessness requires a conscious disregard of a substantial and unjusfitiable risk
and the conduct to be gross. S argues that D must have seen the web page instructions since it
is in all caps and large font. D must have known he was skipping pages that could have helped.
Moreover, D likely knew that the room had a risk of suffication. It is a substantial and
unjustifiable risk since people could die as the safe room can be a death room. Alternatively, D
argues he didn't read the ome page on the website. The part about the death room is in smaller
font and he missed it and never knew about the dangers of the death room.
Gross requires the magnitude of harm to outweigh the social utility. The type of harm is
great, since death is involved. Moreover, the probability of suffocation in a crowded room with
no vent is great. The cost of alternative would be to not have a safe room and people to die in a
terrorist attack. Alternatively, the social utility is high. Safe rooms benefit society by protecting
people. Moreover, if he didn't build it, he could save a lot of money, especially if terrorist don't
end up attacking him.
On balance, the conduct is gross but not reckless and there is no murder 2.
IM requires mere recklessness or gross (criminal) negligence. The conduct is not

reckless but gross. Negligence requries that the defendant should have known. D should have
known that rooms need vent. He has likely been in rooms all his life. He should have known
safe rooms needs certain special features to make it a safe room. On balance, he is culpable for
IM.
Any death that occurs when defendant is using a dangerous instrumently negligently
results automatically in IM. If a safe room is considered a dangerous instrument (unlikely since it
is suppose to be safe), then D could automatically be culpable for IM.
On balance D is culpable for IM.
Causation
Causation requires actual (but for) and proximate (legal) cause. But for D building the
safe room, everyone would have died. D argues that he and his friends could have died from a
terrorist attack if he didn't build it, but there is no indication that there was a terrorist attack.
Proximate cause looks at foreseeability and intervening acts. Its foreseeable that a
crowded room with no ventiliation would lead to suffication and people to die. D argues that it is
more foreseeable that people would get saved from building a safe room, buit it is foreseeable
that people would not be saved if the room was not properly built.
Intervening acts look at foreseeability and control and policy. D argues the people trying
to rush out is an intervening act. However, it is foreseeable that people would try to escape
when they start dying. Moreover, the acts of others are not truly voluntary since they are all
forced into a small room. Their acts are in response to the poorly built room and thus not
superseding. Lastly, D had control of the situation and courts would likely want to blame him. He
could have warned the people or helped them out but he simply left the safe room. D argues he
felt woozy too so could not help them.
Rape
Rape is the unlawful sexual intercourse without consent using fear, force or fraud. There
is likely no fear, force, or fraud. S argues that by bringing into the safe room, D used the fear of
an impending terrorist attack, but this will not likely suffice. There is no indication of force or
deception. There is also no indication that Sally did not consent.
On balance, there is likely no rape charge.
Conspiracy
Conspiracy is the crime of agreeing to commit a crime. It is a separate and inchoate

crime punishing preparatory conduct.
AR requires an express or implied agreement between qualified defendants. There was
likely an agreement by concerted action of dropping the wallet and putting money in, even if no
words were spoken. The Wharton rule precludes conspiracy if an act inherently requires 2, but it
is possible to have more than one person bribe a government official. People can pool their
money in to bribe more than one government agent. D will argue that the act of bribery requires
one person to hand it to another, and thus naturally requires 2. The bilateral (plurality
requirement) requires two guilty minds. The inspector is likely not a guilty mind (unless corrupt).
Thus, under this approach only D is a potential guilty mind and there is no conspiracy. Other
courts use the unilateral rule (MPC) and only require 1 guilty mind, thus it is enough for D to be
guilty. On balance, AR is established.
An overt act was not required at common law (or for serious crimes still). Some courts
require an act (legal or not) by any coconspirator carried out for the purposes of the conspiracy.
Slipping the money in by D or even dropping the wallet by the inspector would likely suffice.
MR requires knowingly agree with purpose for the crime to suceed. D must have known
since he "gets the message." Moreover, he must have known he was bribing a government
official (assuming the inspector was not undercover). Purpose can be inferred from stake in the
venture, and D gets a stake in the venture by letting the "problems" go away. This is vague, but
it could mean he would receive no bad publicity or even no criminal charges. Knowledge is
sufficient in some courts for serious crimes, but bribery is not a dangerous crime and purpose
will likely be required.
On balance, there is likely a conspiracy charge.
Attempt (bribery)
crime that merges with the completed crime.
AR has several approaches. The first step is not used except in poison cases. The last
step was used at common law. Dangerous proximity looks at what has been done and what is
left. D has done everything possible as he has taken the last step. He has already slipped the
$250 into the wallet and handed it to the inspector. Unequivocality (res ispa loquitor) looks in the
abstract to see if there is unequivocal intent. It is possible for one to give money to officers for
purposes other than bribery. The MPC combines the previous two tests and requires a
substantial step corroborative of intent. D has taken the step of putting money in the wallet and
handing to the officer, supporting his goal of bribery. On balance, AR is established.
MR requires purpose. Purpose requires goal or aim. MPC requires purpose or belief. D
had the desire to bribe the official since he wanted no bad publicity. Moreover, he likely did not
want to be charged with crimes for the death of his friends. On balance, MR is established.
completion of the crime. D has taken the last step of giving the money to a public official, but the
public official cannot keep the money. Factual impossibility is not a defense, but legal
impossibility is. S argues it is a fact that the inspector cannot keep the money. D argues there is
no law against giving money to public officials who can't keep it (and should have given it back).
The situation is not likely dangerous but courts would likely want to blame D.
Under the MPC, there is no impossibility defense. If the circumstances were as D
believed, then there would have been a crime. If D thought the inspector was corrupt, he would
have be culpable for bribery and have an attempt charge. Since bribery does not pose a public
danger, there is likely mitigation.
On balance, D is culpable for attempt.
Entrapment
Entrapment excuses a crime due to unfair government conduct. The inspect is likely a
government official.
The federal approach focuses on predisposition of the government. The government can
bring in evidence of his prior bad acts. He was predisposed since he actually committed the
crime. Moreover, he tends to follow government instructions no matter what. D asserts that he
did not come up with the idea and the inspector initiated. D also would likely bring a motion to
dismiss for outrageous government conduct, but that almost always fails.
The Califonria approach focuses on government conduct and if that would cause a
normal law abiding citizen to commit a crime. D asserts that the inspector mentioned the bribery
and dropped the wallet. Moreover, the inspector initiated the contact. S asserts that the
inspector droped the wallet by accident and that his words were not even about bribery. the "if
you pay enough" referred to settling claims with the families of the decedents.
Under MPC, conduct of the government goes to the judge and there is likely no
entrapment defense.
Defense of Others
Traditionally one stands in the shoes of others. His friends were not facing imminent
attack and thus no defense of others. Majority of courts no require D to be reasonable, but using
the room to defend others was likely not reasonable since a "red alert" is a vague threat to his
friends. It may be reasonable to put them all into one room, and thus there may be a defense of
others claim, especially if the terrorist attack was very real.
Self Defense
Self defense excuses the use of force when under unlawful attack. D likely did not use
force and cannot assert building the safe room to defend himself. Moreover, the attack was not
imminent.
Necessity
Necessity justifies a crime because it is the lesser of two evils (choice of lesser evil
defense). However, he asserts he chose to build the room or let people die during a terrorist
attack. There is also no imminence and likely no necessity defense. Moreover, the lesser evil
chosen in his eyes would not be in society's eyes. Society would not agree that a dangerous
saferoom is the lesser evil.
-Mistake of Law
-STATE V. MONTY
2.)
S v. SCOTT (SC)
Death of Bill, Scott's Dad (D)
Homicide
AR
AR (defined above) is established by grabbing D by the throat and closing the hands
closer together to choke. Regarding omissions, there is no general duty to help. Once SC had
started strangling, he created a peril (viewed as positive act or omission). He did not make any
effort to help him (obviously because he continued to strangle).
Murder 1
though. SC was "shaking and screaming," moreover, he was likely angry at his father for
strangling his mother, suggesting no cool thought.
Under Carroll, purpose is enough and no time is too short for premeditation. S argues
that SC formed the premeditation during the choking. Purpose is desire or aim. He had the
purpose since D killed his mother. D had large powerful hands which could hurt him. It was only
a matter of time before "his father would try to get rid of him" and thus he wanted to strike first.
Moreover, he had the intent to kill since he grabbed "Bill by the throat." The neck is a vulnerable
place that results in death when squeezed upon. SC targetted the neck by moving his hand
there. SC also said "dad needed killing" to his wife later. Lastly, the fact that SC did not call for
help and tried to dispose of the bodies suggest he meant to and wanted D to die.
Under Anderson, preconceived design and purpose is needed. Preconceived design
looks at motive, manner, and planning. SC did not likely plan his dad to come and hug him. The
motive was likely revenge. The manner was grabbing one by the through. Choking is usually
acted out of anger and since one has to use his bare hands, there is likely little planning.
Murder 2
Murder 2 requires malice and is a dumping ground when there is not enough for
bodily harm, or gross recklessness (implied malice). SC had the intent to kill (see purpose
above). Since he had the intent to kill, there is automatically an intent to cause grave bodily
harm. Gross recklessness does not apply since there is no indication of anything other than
intent.

Actual heat of passion requires sudden anger after provocation. SC was "shaking and
screaming" and also likely angry that D would eventually try to kill hiim. Moreover he "erupted."
Under the categorical approach, injured relative, observed adultery, extreme assault,
mutual combat, and illegal arrest apply. SC argues that his dad used his "powerful hands" to
reach out to him and that constituted extreme assault. Alternatively, it was not assault at all but a
friendly hug. SC also argues that his mother was killed and thus is an injured relative. However,
she was not being injured at the moment and had died long ago.
Other courts take into account the a reasonable person and his physical characteristics
like in Camplin. D had large powerful hands which could have suggested danger. Moreover,
those hands were coming out towards where his neck would be, as hands reaching to hug have
to surround the upper back.This may provoke a reasonable person when facing a potential
murderer.
Other courts account for emotional characteristics like in Cassassa. SC's emotional
anger and fear when facing a potential murderer would also be taken into account. A reasonable
person with his emotional characteristics would much more easily be provoked.
No cooling time requires the anger to follow immediately after provocation. SC erupted
immediately after D's big hands came in his way. Moreover, he argues his anger for his father
was long smoldering for many years (unlikely though since he was happy when he married as
he was "overboard with his affects") and rekindled since he "saw the same expression he saw
the day his mother died." Thus, there is likely no cooling time.
Under the MPC, no provocation is needed, cooling allowed, and words suffice. The
defendant must be under extreme emotional distress (EED) and have a reasonable excuse. SC
likely was under extreme emotional distress since is facing a potential murderer and "erupted."
Reasonableness looks at one in the defendant's situation. SC asserts the excuse was
reasonable since big hands are deadly weapons and the person is a potential murderer.
Moreover the murderer had killed one loved one and it is possible that D would kill another. S
argues that it was not a reasonable excuse but a result of SC's bad personality and idiosyncratic
morality.
On balance, there is likely a mitigation from murder to VM.
There is no indication of anything other than intent so IM likely does not apply.
Causation
Causation requires actual (but for) and proximate (legal cause). But for SC putting his
hands on D, D would not have died.
Proximate cause looks at foreseeability and intervening causes. It is foreseeable that
one would die when choked, since people need oxygen to breathe and continue living. There
were no intervening causes.
Death of Lucy (L)
AR
AR is established by grabbing L by the throat and "began strangling." Regarding

omissions, there is no general duty to help. Once SC had started strangling, he created a peril
(viewed as positive act or omission). He did not make any effort to help her (obviously because
he continued to strangle).
Murder 1 (defined above)
Murder 1 requires premeditation. SC gave L a "cold stare," suggesting his mind was
calm and cool. Alternatively, SC asserts he was still angry at his father and the anger had not
subsidized. Moreover, he was shouting as he choked.
Under Carroll, SC had the purpose to kill. he said "no jail for me," suggesting he wanted
to kill L so she would not report him for the murder. Moreover, he wanted to obey the commands
of the angel. S argues he formed the premeditation in between the time L walked down the
stairs after D died as no time is too short. Also, the attempt to coverup the bodies suggest that
he wanted and expected them to die. The fact that he did not help L after she died suggest that
was SC's desire.
Under Anderson, there must be preconceived design. Again this is no planning since he
likely did not expect his father to come, though perhaps he did expect his wife to walk down the
stairs and see what is going on. The use of his hands suggest no planning either, as no weapon
was used. Moreover the manner was one of killing, suggesting one of likely anger. The motive
was to not go to jail and let L report him. The motive was one to hide the first killing.
On balance, there is likely murder 1.

There is an intent to kill (see murder 1 above). This automatically suffices for intent to
cause grave bodily harm. Gross recklessness does not apply since this was not accidental and
there's no indication of anything other than intent.
Voluntary Manslaughter (defined above)
SC had actual heat of passion since he "shouted" and because he choked L, which is a
form of killing that is usually done out of rage. Moreover, his anger from his father might not
have subsided.
Under the categorical approach, none of the categories suffice.
A reasonable person with his physical characteristics would not be provoked either. The
wife simply had walked down the stairs and said they needed to call for an ambulance or the
police. This is not enough to provoke one to kill out of anger. SC argues that the threat of going
to jail could be sufficient provokation to protect oneself from the one who would report them.
However, SC made no attempt to even talk to his wife or ask her not to.
Even a reasonable person with SC's emotional characteristics would likely not merely be
provoked to kill. SC had just killed someone and is likely emotionally disturbed to some extent.
He could be more easily provoked especially with the threat of jail time. He would likely have a
better chance under this approach.
SC likely had no cooling time. He saw his wife and immediately went for her after she
provoked him by mentioning calling the police.
Under the MPC, SC was likely still under EED from killing someone and the previous
anger. SC argues he had a reasonable excuse since someone threatened to call the police. S
argues that the threat was not to get him arrested, but merely to call the police to get help for
the man who is on the ground. Moreover, this second killing is also due to SC's bad personality
and idiosyncratic morality. The second killing was to hide the first killing which could be a
reasonable excuse.
On balance, there is likely no VM.
Involuntary Manslaughter
There is no indication of anything other than intent, so IM does not apply.
Felony Murder
Any death during the comission of a felony is automatic (constructive murder). All
BARKRM is murder 1, and all others is murder 2. Since L died from the felony of either
attempted murder or improper burial, it would result in murder 2.
The doctrine is limited to inherently dangerous felonies and precludes some of the least
dangerous ones. In the abstract, there are plenty of ways of buring bodies without someone
dying. However, since L died, it was dangerous as committed.
The merger doctrine requires an independent purpose other than to kill and precludes
some of the most dangerous felonies.. Attempted murder would merge, as malice would have to
be proved anyways. Improper burial would not, since no malice is involved.
The felony must also be during and in futherance of the felony. Duration begins at
planning and ends with escape. SC argues that the death occured after they had dumped the
body into the waters. Their felony of burial was over. S argues that though they were still on
their way back when L died, and thus it was during the felony.
On balance, there is likely no felony murder
Causation (defined above)
Regarding actual cause, but for SC dumping L in the water, she would not have gotten
hit by the boat and died.
Regarding, proximate cause, it is foreseeable that dumping someone in the water would
result in harm. Moreover, they could easily drown since they are wrapped in sheets if they could
not get out.
B asserts that the boat was an intervening act since L was likely alive and perfectly fine.
It is likely foreseeable that people would be boating out in the sea. Moreover, it is foreseeable
that an accident would occur, especially if L, wrapped in sheets, is unable to move. SC argues
that he lacked control of the situation but courts would likely want to blame him for dumping her
body out to sea in the first place, especially if the boating accident was well, just an accident.
Coverup Related Crimes
Conspiracy (to bury, defined above)
Conspiracy is the crime of agreeing to another crime. It is a separate and inchoate crime
AR is established by calling Blake (B) and asking him for help. The AR for conspiracy
was complete when B hesistantly "agreed." Moreover, their concerted action of loading the
bodies into the van and dumping them suggest concerted action.
Some courts require an overt act. Blake's buying of the boxes suffices for the overt act.
MR is established since SC must have known what he was doing. He also had purpose
for the crime to succeed since his stake in the venture is not going to jail. Knowledge is
sufficient for serious crimes, but improper burial is not likely dangerous. S argues it could be if
the person they were burying is not dead and gets buried alive.
Under Pinkerton Rule, there is automatic coconspirator liability for any death carried out
in furtherance of the conspiracy. This is rejected by the MPC. B did not commit any further
crimes, so there would not be any additional crimes under this doctrine.
On balance, SC gets a conspiracy charge.
Strict Liability (for improper burial)
S/L requires no mens rea and is rejected by the MPC. Normally no mens rea defaults to
recklessness. Thus, to determine if S/L applies courts look at 1) statutory language, 2)
legislative intent, and 3) policy. The language has no mens rea mentioned at all. The legislative
intent likely intended it to be S/L since it leads to the spread of disease, which could greatly
affect the public welfare.
S/L incidia include public welfare offenses (courts worried about disease), low penalties
(there is a high penalty of 18 months and it is a felony), large prosecution burden (there is
usually a body as evidence), large numbers (many people die each day and have to be buried),
highly regulated or high risk industry (death is generally highly regulated though not high risk
since people are already dead).
On balance it is not a S/L crime.
Felony of Improper Burial
Thus, the default level of MR is recklessness (defined above). SC asserts he did not
consicously disregard the risk because he checked the local laws. S argues he was merely lying
to B in order to get him to help. It was a substantial and unjustifiable risk since dead bodies can
spread disease. SC asserts that there was little risk since the dead bodies were already dead.
Moreover, he was not conducting a burial at all but dumping them in the ocean. There would be
no risk of disease there. The felony requires a "burial," but this involves no burying at all. It is
tossing it in the ocean and thus the statute would not apply.
On balance, he is likely culpable for this felony.
Theft
SC had the AR of taking sheets from his neighbor's garage and MR because he wanted
to wrap the bodies. Thus he is likely culpable of theft.
Defenses
Mistake of Law
Ignorance or mistake of law is generally not a defense. The exceptions include 1) lack of
mens rea, 2) estoppel, and 3) Lambert exception. SC asserts he misread the local laws
(assuming he did check them), however misreading of the law is generally now a defense. SC
asserts he misread a material element of the law and thus lacked the mens rea. Moreover, the
law requires him to consciously risregard a risk that the burial was unauthorized by law. He
could not have done so if there was no burial.
On balance, he does not have a mistake of law defense.
Self Defense
Self defense is a necessity justifying the use of force when under unlawful attack. It
requires 1) honest and reasonable fear, 2) of death or serious bodily injury, 3) imminence, 4) no
excessive force, 5) duty to retreat, and 6) not brought upon self.
SC likely had an honest fear of his father. S argues it wasn't an honest fear since he
wanted revenge. A reasonable person with his attributes (no big hands), knowing his father was
a murderer, and saw the hands approaching near his neck (knowledge of attacker) was believe
force was required. Under the MPC, the defendant reasonably believed force was necessary
and SC likely did. S would argue this was not reasonable since the man was his father, they
haven't seen each other in so long, and it was all for a hug.
The threat was for death, since those hands could have choked SC to death.
It was imminent since the hands were right by his face (in order to hug). Courts generally
use reasonable but this situation was here and now. MPC looks to see if defendant believed it
was imminent and it likely was since it was right in front of him.
It was not likely excessive force since he used his hands against someone else's hands.
Duty to retreat was not required at common law. It is also not required here since SC is
in his home (castle exception).
On balance, there is likely a self defense claim.
Insanity
Insanity excuses a crime due to one's mental status at the time of the offense. The
defendant must be competant or sane to stand trial and there is no indication that he could not
do so.
M'Naghten 1) presumes sanity at the time of the offense, 2) requires a mental disease
(legal concept), and 3) did not understand the nature of his acts or that they are wrong.
Mental disease is any abnormal condiction of the mind substantially affecting mental
processes and impairing control. Factors include history, symptoms, number qualifying, stimga,
sincerity, and brought upon self. This was not likely brought upon himself to have his father kill
his mother. Moreover, he had a history of syndromes his doctors labeled. He had symtpoms
requiring shock treatmemtn, shaking, refusal to speak. The number qualifying for post-oedipal
syndrome can be high since many people obsessively bond with their mothers. Many people
can also have a stressful youth. There is likely little stigma, and the symptoms are relatively
easy to fake. On balance there is likely no mental disease.
SC argues that he did not understand the nature of his acts. He was bambling about
angels when killing L. Moreover, he moved like in a trance as he tried to bury the bodies. S
argues that he totally faking. Moreover, there is no way he was insane the entire way through.
The coverup of the bodies, and coverup of killing L is exactly what SC wanted. It can't be just
coincidence that the people B all wanted to die ended up dying. Moreover, he was able to drive,
to call up B and formulate a plan, all suggesting he understand what he was doing. Moreover,
SC must have known his acts were wrong since he tried to cover it up. If SC did not understand
they are wrong, he would not cover it up. There was just too much thinking involved for him to
not have mental capacity.
Under the common law additions, the irresistible impulse test (police at elbow) finds
insanity if defendant could not control himself. SC asserts his hands were shaking, but it is
unlikely the jury will believe he had no self control at all. The deific decree applies only when
one hears voices from God. Angels are generally not God, but SC asserts that angels are
technically God (a stretch). Moreover, God speaks to people by using angels, and thus SC may
have a deific decree defense.
There is likely no defense under M'Naghten.
Under MPC, 1) and 2) are same as M'Naghten above and 3) defendant must lack
impulse above). SC must have understood the criminality since he had knowledge of the
murders, and was emotionally concerned about being caught, leading to the coverup. He cannot
have lacked the capacity to appreciate the criminality if he tried so well to hide his actions later.
Thus, there is likely no insanity defense.
DC allows the use of experts to show no intent was formed due to a lower mental status.
This is rejected in some courts.
Others allow it to reduce a specific intent crime to no crime. SC may reduce his murders
to manslaughter, but there are likely no lower crimes for everything else.
MPC allows a reduction from a general intent crime to no crime. If experts show SC
lacked mental capacity he may have a DC defense.
STATE v. BILL (B)
Improper Burial
Conspiracy (defined above)
B had "agreed," satisfying the AR, likely by phone.

He must have known since he and SC discussed it over the phone. Moreover, he had a
stake in the venture (to infer purpose) since SC would not expose his bad checks and he would
not go to jail as a result. Knowledge is sufficient for dangerous crimes, but improper burial is
likely not dangerous.
Under Pinkerton Liability, he would be culpable for SC's other crimes of burying the body
and theft. The doctrine is not retroactive and thus he would not be culpable for the murders.
Accomplice
Accomplice liability is the crime of helping another commit a crime. It is not a separate
crime but a theory of culpability for the substantive offense (of improper burial).
AR requires help. B "loaded" the bodies and drove with SC. Moreover, he obtained the
two large bodies for SC to put the bodies in.
MR requires knowing help with purpose for the crime to succeed. He has a stake in the
venture (see above, conspiracy). Moreover, he must have know what they were doing due to
the dicussion on the phone as SC likely told him of the plans. Knowledge is sufficient for
dangerous crimes, but improper burial is likely not dangerous. Some courts also allow just
knowledge for a separate crime of criminal facilitaiton, wihch B may be culpable for.
probable consequences. It is foreseeable that SC would obtain more supplies to help wrap the
bodies. Moreover, it is probably and natural that they actually end up dumping the bodies since
that was their original plan.
On balance, B would be culpable for theft and improper burial under an accomplice
liability theory.
Accessory after the Fact
Common law distinctions have been removed and accessory after the fact gets half
punishment generally. B is an accessory after the fact since he did not originally help with the
murders but help dispose of the bodies.
Felony of burying
The analysis is similar to SC above. He would also be culpable for the felony since he
directly participated in the offense, in addition to being culpable for this offense under
accomplice and conspiracy theories.
Defenses
Mistake of Law (defined above)
B asserts he lacked the MR to commit the crime of improper burial. He of course, als
obrings up the fact that they never conducted any burying to begin with. The statute was likely
not S/L and thus he had to conscious disregard a risk, which he could not have done since S
told him it was not illegal and thus negated his mens rea.
B also asserts an estoppel theory since SC assured him it was not illegal. However, this
is not an official interpretation and SC has likely no authority (unless he is the attorney general)
to discuss the law.
Thus, the estoppel theory cannot be used but there is no mens rea and thus a mistake of
law defense.
Duress (common law)
Duress excuses a crime because of compulsion. It requires 1) threat of death or serious

bodily harm, 2) imminence, 3) to defendant, 4) that a man of ordinary fortitude and courage
would yield, 5) not brought upon self, and 6) not for homicide (this was duress to bury, not to
kill).
The threat was not to his life. B asserts there was a threat of him going to jail and dying
there. However, there is no indication he would end up in the same jail.
Imminence requires here and now, though some courts relaxed it. There is no
imminence at all since it would take time for S to report the bad checks, the police to come, and
the attackers to attack him.
The threat was directly to B so this was no problem.
An ordinary man does not want to go to jail and would yield to threat to merely help drive
and dump bodies rather than go to jail and get raped or die. Lastly, dumping bodies seems a lot
better than going to jail for life for most people.
S asserts B brought this upon himself by going to jail before, writing bad checks (and
letting SC know about it), or being a friend with SC. Though B did do all that, he did not want to
be put under pressure to throw bodies, nor are B and SC likely in a gang.
On balance, there is likely no duress defense. There is no more imperfect defense
either.
Duress (MPC)
Duress requires 1) threat of unlawful force to anyone, 2) that one of reasonable firmness
in defendant's situation would yield, 3) not brought upon self (see above).
Imminence and type of harm are factors. Though there is no imminence, the threat of
harm is high. A reasonable person in B's situation would likely dump bodies and not risk death
or rape. On balance B has a much greater chance under the MPC.
Necessity
Necessity (defined above) requires a choice of evils. B had to choose between helping
SC or going to jail. This may have been an honest and reasonable choice (society may value
his life over how property or the bodies are handled). However, the situation is not imminent and
contrary legislation exists. Moreover he somewhat brought this upon himself. There is likely no
necessity.
Self Defense
Self defense has the same problem (defined above). Though the threat is to his body
later, there is no imminence and he likely brought it upon himself. Thus, there is likely no self
defense claim against future killings in jail.
STATE (S) v. JANE (J)
Improper Burial
Accomplice (defined above)
AR is establishing by the act of selling, which helps B obtain the boxes he need for the
burial
MR requires knowingly help with purpose for the crime to succeed. Knowledge is
sufficient for serious crimes, but improper burial is not. Normally, mere suspicion is insufficient. J
must have known since long boxes that the size of human bodies can be used for burying.
However, there are legal uses for it. Moreover, the words of B could have been a joke. She does
have a purpose since she has a stake in the venture by charging him double.
Under the reasonably foreseeable doctrine, she would be culpable for the eventual
dumping of the bodies. It is foreseeable and probably that they dump the bodies, since that is
likely what those boxes are generally used for.
Thus, J is likely culpable for the felony of improper burial under an accomplice theory.
STATE (S) v. ADLER (A)
Fishing
S/L
Fishing without a license may be strict liability. It is punishable by a small fine and
consistent with S/L indicia of low penalties. Moreover, it could be harm to prove they fished there
unless there are video cameras around (high prosecution burden), large numbers (a lot of
people fish), highly regulated or high risk (food is highly regulated and fish is food), and food
affects the public welfare.
Thus, A would be culpable for fishing with an expired license.
Death of L
Homicide (defined above)
There is no indication of intent. L and A were likely strangers. Moreover, this is likely an
accident.
A likely conscious disregarded the risk of fishing and injuring the fish. However, the
license has to do with fishing, and nothing to with injury of people in the water, thus he did not
disregard a risk of hitting someone.
The magnitude of fishing without a license is low, since only fish are involved. S may
argue that people who fish without licenses are worse drivers, but this is a stretch. There is
social utility in fishing and providng food the people. Moreover, the type of harm is low since it
could harm fish. On the other hand, the cost of alternatives is low since getting a license is likely
not expensive.
On balance, the conduct is not gross or reckless and thus no murder 2.
IM
IM (defined above). Since the conduct is not gross or reckless, there cannot be IM even
if negligence is established. A certaintly should have known that it was illegal to troll the waters
fishing without a license.
Under dangerous instrumenalility, if the boat was a dangerous instrument, A could be
automatically culpable for IM since death occured.
Thus, A may be culpable for IM.

MM or the unlawful act doctrine states that any unlawful act not a felony that results in
death is automatic IM. A commited the misdemeanor (see S/L) above. The doctrine is limited to
1) dangerous acts, 2) proximate cause, and 3) mala in se. Fishing is inherently not a dangeorus
act. The death was not the proximate cause of the misdemeanor. Not having your license (to
fish) is unrelated to hitting someone in the water, unless that license also has something to with
boat driving. The license requirement is a regulatory offense (since punishable by fine) and not
bad in itself.
Causation
Regarding actual cause, but for A driving the boat without his license, L would not have
died. S argues if A didn't drive on his boat that day, L would not have died. A asserts that the
license wouldn't have affected his driving anyways. He could have been driving legally on the
water if he wasn't fishing. Moreover, L could have drowned whether he was there or not.
Regarding proximate cause, it is not foreseeable that driving without a fishing license
would end up hitting someone. There were also no intervening acts.
On balance, causation is not established and A is not culpable for the homicide (but
would be for the fishing without a license).
Actus Reus (AR)
AR requires a positive act of one’s volition. Under the MPC, a voluntary act is one that is
not involuntary (spasm, unconscious, hypnosis, movement not of one’s will).
Regarding omissions, there is no general duty to help. The exceptions include
statutory/assumed/contractual/status relationships and creation of peril (positive or omission).
Mens Rea (MR)
Purpose requires aim or goal. Knowledge requires virtual or practical certainty. Willful
blindness (ostrich defense) suffices. Recklessness requires a conscious disregard of a
substantial and unjustifiable risk. Negligence requires that the defendant should have known.
Strict liability requires no mens rea and is rejected by the MPC. The default level is
normally recklessness. To determine if S/L applies, courts look at 1) language of statute, 2)
legislative intent, and 3) policy.
S/L indicia include public welfare or morality offenses, high prosecution burden, large
numbers, low penalties, high risk or highly regulated industry.
Mistake of Fact
Mistake of fact is a defense if it negates the mens rea for a material element. What you
need to know is what makes your conduct wrong. Jurisdictional elements look at 1) language of
statute, 2) legislative intent, and 3) policy. Defendant is culpable for the greater crime (not under
MPC).
Mistake of Law
Ignorance or mistake of law is generally not a defense. The exceptions include 1) lack of
mens rea, 2) estoppel theories, and 3) Lambert exception. Lambert requires notice, omission,
and regulatory offense.
Homicide
Murder 1
Murder 1 requires malice and premeditation. Premeditation is a cool deliberate thought.

Carroll courts require purpose in addition to premeditation. No time is too short for
premeditation.
Anderson courts also require preconceived design, which looks at motive, manner, and
planning.
Murder 2
Murder 2 requires malice and is a dumping ground from when there is not enough for
premeditation or heat of passion.
Malice is intent to kill (express malice), intent to cause grave bodily harm, or gross
recklessness (implied malice).
Gross requires the magnitude of harm (type/probability of harm) to outweigh the social
utility (cost of alternatives, social utility).
Manslaughter is killing without malice. VM requires actual heat of passion, legally

adequate provocation, and no cooling time.
only extreme assault, injured relative, mutual combat, illegal arrest, and observed adultery
suffice. Words are generally insufficient.
Majority of courts use a reasonable person stand with his physical characteristics like in
Camplin.
Other courts account for emotional characteristics like in Cassassa.
No cooling time requires the act to immediately follow provocation. The exceptions are
long smoldering and rekindling.
MPC allows cooling time, no provocation needed, and words can suffice. Defendant
must subjectively be under extreme emotional distress (EED) and have a reasonable excuse.
Reasonable is looked at from the defendant’s point of view. The excuse cannot be from his bad
personality or moral idiosyncracy.
IM requires mere recklessness or gross (criminal) negligence. The conduct is gross and
reckless (see above). Negligence requires that the defendant should have known.
A death that occurs when a defendant is negligently operating a dangerous instrument is

automatic IM.
Felony Murder (FM)
felony must be proved. All BARKRM is murder 1, the rest is murder 2.
The inherently dangerous doctrine limits felonies to the inherently dangerous ones and
precludes the least serious felonies. It can be viewed in the abstract or as committed.
Merger doctrine precludes the most serious felonies and requires an independent
purpose other than to kill. Malice should not have to be proved anyways.
The death also must occur during and in furtherance of the felony. Duration begins at
planning and ends with escape.
Under the Agency theory, defendant is only culpable for the acts of cofelons.
The exception is the provocation act doctrine, which holds culpability if defendant
Under the proximate cause approach, defendant is culpable for any deaths proximately
caused by his unlawful acts.
When a co-felon dies, his death is justified because he assumed the risk, his life is
valued less, and his death is not in furtherance of the felony. Other courts hold culpability as and
value the life as a human being.
MM or the unlawful act doctrine states that any unlawful act not a felony resulting in
death is automatically IM. The misdemeanor must be proved. It is limited to proximate cause,
dangerous acts, and mala in se.
Causation
link in the chain.
Intervening acts look at control and policy (who we want to blame).
Attempt
step was used at common law. Dangerous proximity looks at what has been done and what is
left. Unequivocality (res ispa loquitor) test looks in the abstract to see if acts show unequivocal
intent. MPC combines the last two approaches and requires a substantial step corroborative of
intent.
completion of the crime. Factual impossibility is not a defense, but legal impossibility generally
is. Hybrid cases look at dangerousness and who we want to blame.
MPC allows no impossibility. If the circumstances were as defendant believed and there
would be a crime, then there is attempt. If there is no public danger, then there is mitigation.
Abandonment was not allowed at common law. Some courts now allow it with a full and
Accomplice
Accomplice is helping another commit a crime. It is not a separate crime but a theory of
culpability for the substantive offense. Common law distinctions have been removed and all
accomplices have the same punishment except for accessory after the fact.
AR requires help. Mere presence is not enough without prior agreement. Words can be
enough. Act does not have to make a difference. Principal does not have to be aware. Help can
be by omission. Help needs to be capable of helping (but not under MPC, allows attempted
complicity)
MR requires knowingly help with purpose for the crime to succeed. Mere suspicion is
generally not enough. Purpose can be inferred from stake in the venture or nexus. Principal
does not need to be convicted. Knowingly is sufficient for serious crimes in some courts. It is
also sufficient in some courts for criminal facilitation.
MPC requires purpose to facilitate or promote commission of the crime.
Negligent crimes require purpose to help and negligent regarding the results. MPC
requires the defendant to have the same MR.
Courts are split on S/L crimes (rejected by MPC), but purpose generally needed.
Reasonably Foreseeable doctrine holds culpability for all natural and probably
consequences but not for separate frolics. This is rejected by the MPC.
renunciation with efforts to stop the crime (can also notify police under MPC).
Conspiracy
Conspiracy is agreeing to commit a crime. It is a separate and inchoate crime punishing

preparatory conduct.
AR requires an express or implied (concerted action) agreement between qualified
defendants. The Gebardi rule protects victims, the Wharton rule precludes conspiracy is the
crime inherently requires 2 people. Bilateral (plurality requirement) rule requires two guilty
minds. Unilateral (MPC) requires only 1.
MR requires knowingly agree with purpose for the crime to succeed. Purpose can be
inferred from stake in the venture, no legitimate use, or grossly disproportionate volume of
sales. Knowledge is sufficient in some courts for serious crimes.
Some courts require an overt act (not at common law). It can be any act (legal or not)
carried out for the purposes of the conspiracy. This is not required in some courts for serious
crimes.
Pinkerton Rule holds automatic (vicarious) coconspirator liability for all crimes in
furtherance of the conspiracy. This is rejected by the MPC.
A wheel conspiracy has multiple conspirators working with one middleman to create
many conspiracies. They can be connected if they each have a vested interest in the common
venture. A chain conspiracy is one conspiracy with different roles along a distribution line all for
one operation. Hybrid cases look at whether groups understand the extent of the conspiracy
and benefit from it. The braverman rule states that an agreement with multiple objectives is one
conspiracy.
Abandonment allows one to avoid further coconspirator liability if he has a full and
voluntary renunciation and tries to stop the crime.
MPC allows the same (can also notify police), but allows one to avoid the original
conspiracy charge if he thwarts the crime.
Self Defense
Self defense is a type of necessity justifying the use of force when under unlawful attack.
It requires 1) honest and reasonable fear, 2) death or serious bodily injury, 3) imminence, 4) no
excessive force, 5) duty to retreat (in some courts), and 6) not the initial aggressor.
Reasonable is one in the defendant’s situation, taking physical attributes of everyone,
prior experiences, and knowledge of the attacker into account. MPC looks to see if defendant
reasonably believed force was necessary.
Some courts (MPC) allows self defense against BARKRM.
Imminence is here and now, reasonable, or inevitable. Courts use reasonable person in
defendant’s situation. MPC looks to see if defendant reasonably believed force was imminent.
Deadly force is only allowed against deadly force. Some courts (MPC) allow it for
BARKRM.
Duty to retreat is not required at common law. It only applies at the time of the attack,
when using deadly force in defense, and defendant knows he can retreat safely (unless in one’s
abode, castle exception).
The initial aggressor is one who raises it to a level of violence.
Some courts allow imperfect self defense to mitigate from murder to manslaughter under
EED theory.
Defense of Others
Traditionally, defendant stands in the shoes of others. Majority of courts now require the
defendant to be reasonable.
Defense of Property
Deadly force is not allowed to defend property and nondeadly force may be used.
Law Enforcement
Police cannot use deadly force to apprehend a suspect unless the suspect poses a
threat of serious danger to others or himself.
Necessity
Necessity (choice of lesser evils defense) justifies a crime because it was the lesser of 2
evils. It requires 1) choice of evils, 2) no apparent alternative, 3) imminence, 4) lesser evil
There must be no lawful alternatives. The defendant must surrender immediately upon
prison escape cases.
Imminence requires here and now though some courts relaxed it. MPC looks at it as
factor.
Lesser evil must be honestly and reasonably chosen. The harm avoided must be greater
than harm caused from society’s view. Life is worth more than property. Necessity is not allowed
for homicide. Some courts (MPC) allow more lives to be saved over less lives.
MPC allows one to bring it upon oneself but can still be culpable for the original
negligence.
If necessity fails the alternative is jury nullification out of sympathy. The prosecutor will
strongly argue against allowing this argument.
Duress (common law)
Duress excuses a crime committed due to compulsion by another. It requires 1) threat of

death or serious bodily injury, 2) imminence, 3) to defendant, 4) not for homicide, 5) not brought
upon self, and 6) that a man of ordinary courage and fortitude would yield.
Imminences requires here and now, though some courts relaxed it.
Later common allowed duress for close family and friends.
Duress (MPC)
Duress requires 1) unlawful threat to anyone, 2) that a man of reasonable firmness in

defendant’s situation would yield, 3) not brought upon self (see above).
There is no more imperfect duress.
Insanity
Insanity excuses a crime due to one’s mental status at the time of the offense. The
defendant must also be competent or sane to stand trial. He must be able to consult with his
M’Naghten 1) presumes sanity at the time of the offense, 2) requires a mental disease
(legal concept), and 3) defendant did not understand the nature/quality of his acts or that they
were wrong.
Mental disease or defect is any abnormal condition of the mind substantially affecting
mental processes and impairing control. Factors include stigma, sincerity, history, number
qualifying, symptoms, and brought upon self.
Common law additions include irresistible impulse (police at elbow) test. The defendant
is insane if he could not control himself even with a cop at his elbow. Deific decree applies if
defendant is talking to God.
Under MPC, 1) and 2) are same as M’Naghten above, and 3) defendant lacks
impulse above). Appreciate is knowledge and emotional concern.
DC is a partial defense allowing experts to show no mens rea was formed due to a lower
mental capacity. This is rejected in some courts.
Some courts allow DC to reduce a specific intent crime to a general one. Specific intent
crimes look at mens rea, historical name, and if a lessor crime exists.
MPC allows a reduction to no crime.
Intoxication

Voluntary intoxication was not allowed at common law. It can reduce a specific intent
crime to a general one (see above). MPC uses the same approach.
Entrapment
Entrapment excuses a crime due to unfair government conduct. Anyone who works for
law enforcement or cooperates with them suffices.
The federal approach focuses on predisposition of the defendant. His prior bad acts can
be brought in. Defendant can file a motion for outrageous government conduct but it almost
always fails.
The California approach focuses government conduct and if it causes a normal law
abiding citizen to commit a crime.
Under MPC, conduct of the government goes to the judge.
Rape is unlawful sexual intercourse without consent by fear, force, or fraud.
Death Penalty
Pros include history, deterrence, incapacitation to prevent future murders, and upholding
the sanctity of life.
Cons include no proven deterrence, life without parole also incapacitates, costs more,
allows discrimination, and degrades value of life.
There must be bifurcated trials. Special jurors that only use the death penalty under
circumstances are allowed. There cannot be mandatory death penalties. Guidelines must be
given with mitigating and aggravating circumstances. Courts cannot execute minors or retarded.
Actus Reus (AR)
AR requires a positive act of one’s volition. Under the MPC, a positive act is anything
that is not involuntary (spasm, hypnosis, unconscious, movement not of one’s will).
Regarding omissions, there is no general duty to act. The exceptions include
status/assumed/contractual/statutory and creation of peril (positive act or omission).
Mens Rea (MR)
Purpose requires desire or aim. Knowledge requires virtual or practical certainty. Willful
blindness (ostrich defense) also suffices. Recklessness requires a conscious disregard of a
substantial and unjustifiable risk. Negligence requires the defendant should have known.
Strict liability requires no mens rea and is rejected by the MPC. The default level is
normally reckless when no mens rea is listed. To determine if S/L applies, courts look at 1)
language of statute, 2) legislative intent, 3) policy.
S/L indicia include public welfare or morality offenses, highly regulated or high risk
industry, large prosecution burden, large numbers, and low penalties.
Mistake of Fact
Mistake of Fact is a defense if it negates the mens rea of a material element. What you
need to know is what makes your conduct wrong. Jurisdictional elements look at 1) statutory
language, 2) legislative intent, and 3) policy. Defendant is held for the greater crime (lesser
under MPC).
Mistake of Law
Ignorance or mistake of law is generally not a defense. The exceptions include 1) no

mens rea, 2) estoppel theories, 3) Lamber (notice, omission, regulatory) exception.
Homicide
Murder 1
Murder 1 requires malice and premeditation. Premeditation is a cool deliberate thought.

Carroll standard requires purpose. No time is too short for premeditation.
Anderson standard also requires preconceived design, which looks at motive, manner,
and planning.
Murder 2
premeditation or heat of passion. It requires intent to kill (express malice), intent to cause grave
Gross requires (Hand approach) the magnitude of harm (probability/type of harm) to
outweigh the social utility (benefit to society/cost of alternatives).

Legally adequate provocation has several approaches. Words are generally insufficient.
Under categorical approach only extreme assault, observed adultery, injured relative, mutual
combat, and illegal arrest apply.
Majority of courts use a reasonable person approach and account for physical
characteristics like in Camplin.
Other courts account for emotional characteristics like in Cassassa.
Inadequate cooling time requires the act to immediately follow provocation. The
exceptions are long smoldering and rekindling.
The MPC does not require provocation, can have cooling time, and words can be
enough. The defendant must subjectively be under extreme emotional distress (EED) and have
a reasonable excuse. Reasonableness is one in the defendant’s situation. The excuse cannot
be because of the defendant’s bad personality or moral idiosyncrasy.
IM requires mere recklessness or gross (criminal) negligence. Gross and recklessness

are discussed above. Negligence requires that the defendant should have known.
Under dangerous instrumentality, a defendant who causes death while negligently
handling a dangerous instrument is automatically culpable for IM.
Felony Murder (FM)
felony must be proved. All BARKRM is murder 1; the rest are murder 2.
The inherently dangerous doctrine precludes the least serious felonies and only
inherently dangerous felonies qualify. It can be viewed in the abstract or as committed.
The merger doctrine requires a separate purpose other than to kill and precludes some
of the most serious felonies. Malice should not have to be proved anyways.
The felony must also be during and in furtherance of the felony. Duration begins at
planning and ends with escape.
Under the agency theory, the defendant is only culpable for the acts of cofelons.
The exception is the provocation act doctrine, where defendant is culpable for acts of
others if he creates an atmosphere of malice.
Under the proximate cause theory, defendant is culpable for any deaths that proximately
result from his unlawful acts.
If a cofelon dies, some courts view this as justified because the cofelon assumed the
risk, has a lower value of life, and is not in furtherance of the felony. Other courts view this as
the death of a human being.

MM or the unlawful act doctrine states that any unlawful act not a felony resulting in a
death is automatic IM. The misdemeanor must be proved. MM is limited to 1) proximate cause,
2) dangerousness, and 3) mala in se.
Causation
Causation requires actual (but for) or proximate (legal cause). Actual cause requires a
link in the chain.
Intervening acts look at foreseeability and control and police (who we want to blame).
Attempt
step was used at common law. The dangerous proximity (Holmes) approach looks at what has
been done and what is left. The unequivocality (res ispa loquitor) test looks in the abstract to
see if the acts show unequivocal intent. MPC combines the previous two approaches and
requires a substantial act corroborative of intent.
completion of the crime. Factual impossibility is not a defense, but legal impossibility is. Hybrid
cases look at dangerousness and who we want to blame.
Under the MPC there is no impossibility defense. If the circumstances were as the
defendant believed and there is a crime, then there is attempt. If there is no public danger then
defendant can receive mitigation.
Abandonment was not allowed at common law. Some courts now allow it with a full and
Accomplice
Accomplice is helping another commit a crime. It is not a separate crime but a theory of
culpability for the substantive offense.
AR requires help. Help does not have to make a difference. Mere presence is
insufficient. Words can be sufficient. Principal does not have to be aware. Help can be by
omission. Help needs to be capable of helping (not under MPC, no attempted complicity)
MR requires knowingly help with purpose for the crime to succeed. Purpose can be
inferred from stake or nexus. The principal does not need to be convicted. Knowledge is
sufficient in some courts for serious crimes. It is sufficient in other courts for the crime of criminal
facilitation.
MPC allow requires purpose to facilitate or promote the commission of the crime.
Negligent crimes require purpose to help and negligent regarding the results. Courts are
split on S/L, but are rejected by the MPC. Other courts still require purpose.
Reasonably Foreseeable doctrine holds defendant culpable for all natural and probable
consequences but not separate frolics, this is rejected by the MPC.
renunciation with efforts made to stop the crime (can also notify police in MPC).
Conspiracy
Conspiracy is agreeing to commit a crime. It is a separate and inchoate crime that
AR requires an express or implied (concerted action) between qualified defendants.
Gebardi protects victims. Wharton precludes conspiracy if the crime inherently requires 2
people. Bilateral (plurality requirement) rule requires 2 guilty minds. Unilateral (MPC) requires
only 1.
An overt at is not required at common law. Some courts require an act (legal or not)
carried out for the purposes of the conspiracy by any coconspirator. This is not needed in some
courts for serious crimes.
MR requires knowingly agree with purpose for the crime to succeed. Purpose can be
inferred from stake in the venture, no legitimate use, or grossly disproportionate sales.
Pinkerton liability states there is automatic coconspirator (vicarious) liability for all crimes
carried out in furtherance of the conspiracy. This is rejected by the MPC.
A wheel conspiracy has multiple conspirators each connected to one middleman to
create one conspiracy. They can be connected into one conspiracy if they each have a vested
interest in a common venture. Chain conspiracies are generally one conspiracy with different
roles along a distribution line all for one operation. Hybrid cases look at whether groups knew
the extent of the conspiracy and benefited from it. Braverman rule states that an agreement with
multiple objectives is one conspiracy.
Abandonment is allowed to prevent further coconspirator culpability with a full and
voluntary renunciation and efforts made to stop the crime (or notify police under MPC).
MPC also allows one to avoid the original conspiracy charge if one thwarts the crime.
Self Defense
Self defense is a necessity justifying the use of force when under unlawful attack. It
requires 1) threat of death of serious bodily injury, 2) honest and reasonable fear, 3) imminence,
4) no excessive force, 5) duty to retreat in some jurisdictions, and 6) not the initial aggressor.
Some courts (MPC) allow self defense against BARKRM.
Reasonableness looks at one in the defendant’s situation and takes into account
physical attributes of everyone, prior experience and knowledge of the attacker. MPC looks to
see if defendant reasonably believed force was necessary.
Imminence can be here and now, reasonable, or inevitable. Courts generally look at
reasonableness from the defendant’s situation. MPC looks to see if defendant reasonably
believed it was imminent.
Deadly force can only be used against deadly force. Some courts (MPC) allow it against
BARKRM.
Duty to retreat was not required at common law. It only applies at the time of the attack,
when deadly force is being used, and it is reasonable to safely do so (except in one’s home,
castle exception).
The initial aggressor is one who raises it to a level of violence.
Some courts allow imperfect self defense to mitigate a faulty self defense claim from
murder to manslaughter under EED theory.
Defense of Others
Traditionally one stands in the shoes of others. Courts now generally require defendant
to be reasonable.
Defense of Property
Deadly force cannot be used to defend property, but nondeadly force can be used.
Law Enforcement
Cops cannot use deadly force to apprehend a suspect unless the suspect poses a threat
of harm to others or himself.
Necessity
Necessity (choice of lesser evils defense) justifies a crime because it is the lesser of
There must be no lawful alternatives. Defendant must surrender immediately upon
Imminence requires here and now, though some courts relaxed it. MPC looks at
imminence as a factor.
Lesser evil must be honestly and reasonably be chosen. The harm avoided must be
greater than harm caused from society’s view. Lives are worth more than property. Necessity
cannot be used in homicide cases. Some courts now allow more lives to be saved over less
lives.
MPC also allows one to bring it upon oneself but still holds culpability for the original
negligence.
If necessity fails the alternative is jury nullification out of sympathy. The prosecutor will
strongly argue against allowing this argument.
Duress (common law)
Duress excuses a crime due to compulsion by another. It requires 1) threat of death or

serious bodily injury, 2) to defendant, 3) imminence, 4) that a man of ordinary fortitude and
courage would yield, 5) not brought upon self, and 6) not for homicide.
Later courts allowed duress for close relatives and family.
Duress (MPC)
Duress requires 1) any unlawful threat to anyone, 2) that a man of reasonable firmness
in defendant’s situation would yield, and 3) not brought upon self (see above).
There is no longer imperfect duress.
Insanity
Insanity excuses crime due to one’s mental status at the time of the crime. It also
requires a defendant to be competent or sane to stand trial. He must able to consult with his
M’Naghten 1) presumes sanity at the time of the offense, 2) requires mental disease or
defect (legal concept), and 3) did not understand the nature and quality of his acts or that they
were wrong.
Mental disease is any abnormal condition of the mind substantially affecting mental
processes or impairing control. Factors include symptoms, history, number qualifying, stigma,
sincerity, or brought upon self.
Common law additions include the irresistible impulse test (police at elbow test).
Defendant is insane if he couldn’t control himself even with a police nearby. Deific decree
applies if defendant is hearing voices from God.
Under the MPC, 1) and 2) are the same as M’Naghten above, and 3) defendant lacks
substantial capacity to appreciate the criminality or conform to the law (see irresistible impulse
above). Appreciate is knowledge and emotional concern.
DC is a partial defense allowing the use of experts to show no mens rea was formed due
to a lower mental status. This is rejected in some courts.
Some courts allow it to reduce a specific intent crime to a general one. Specific intent
crimes look at mens rea used, historical name, or if a lesser crime exists.
MPC allows it to reduce a general intent crime to no crime.
Intoxication

Involuntary intoxication is a full defense and can be from deception, force, or pathology.
Voluntary intoxication was not allowed at common law. It can reduce a specific intent
crime to a general one. MPC uses the same approach.
Entrapment
Entrapment excuses a crime due to unfair government conduct. Any informant or one
who cooperates with the government suffices.
The federal approach focuses on predisposition of the defendant. Evidence of his prior
acts can be used. Defendant can bring a motion to dismiss for outrageous government conduct,
but this almost always fails.
The California approach focuses on government conduct and if it would induce a
normally law abiding citizen to commit a crime.
Under MPC conduct of the government goes to the judge.
Death Penalty
Pros include history, upholding the sanctity of life, deterrence, preventing future murders
by incapacitation.
Cons include discrimination, costs, lowering the value of life, no proven deterrence, and
life without parole equally incapacitates.
Bifurcated trials must be used. Only jurors that would use the death penalty under
circumstances are allowed. Courts cannot execute minors or retarded. Mandatory death
penalties cannot be used. There must be guidelines regarding aggravating and mitigating
circumstances.

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Transition words: alternatively, in the alternative, nevertheless, however, nonetheless,

regardless, yet, notwithstanding, conversely

Mens Rea – Insurance Fraud/Arson

Mens Rea – Homicide

Felony Murder – Insurance Fraud

Felony Murder – Arson

On balance, Keating is liable for insurance fraud, arson, and murder 2.

Mens Rea – Homicide (Jack and Jill)

There is no premeditation for murder 1. There is no heat of passion for voluntary

On balance, Hans is guilty of involuntary manslaughter.

STATE v. JOHN (J)

Homicide of Barak (B)

Mens Rea – Murder 1

Murder 1 requires premeditation or a cool deliberate thought in addition to malice.

Mens Rea – Voluntary Manslaughter

VM requires 1) actual heat of passion, 2) legally adequate provocation, and 3) lack of

Mens Rea – Murder 2

Mens Rea – Involuntary manslaughter (IM)

On balance, J is guilty of voluntary manslaughter.

On balance, J is liable to B for homicide.

Homicide of Sara (S)

Mens Reus (MR) – Murder 1

Murder 1 requires premeditation. There is no indication of premeditation. Joe unlikely

VM requires 1) actual heat of passion, 2) legally adequate provocation, and 3) lack of

IM requires mere recklessness and gross negligence. Recklessness requires a conscious

STATE v. JOHN (J)

Death of Barak (B)

Mens Reus (MR) – Homicide

Murder 1 requires premeditation and malice.

Voluntary manslaughter requires 1) actual heat of passion, 2) legally adequate

Involuntary Manslaughter (IM)

Involuntary manslaughter requires mere reckless or gross negligence. There is no

Death of Sara (S)

Mens Reus (MR) – Homicide

Murder 1 requires premeditation and malice. There is no indication of Joe targeting S or

Voluntary manslaughter requires 1) actual heat of passion, 2) legally adequate

On balance, Joe is not liable for the death of S.

Abandonment requires a voluntary and complete abandonment.

STATE (S) v. JACKIE (J)

Mens Reus – homicide

Homicide is the unlawful killing of another human being.

Murder 1 requires premeditation in addition to malice. There is no indication she

Voluntary manslaughter (VM)

Involuntary manslaughter (IM)

Involuntary manslaughter requires gross (criminal) negligence or mere recklessness. She

Felony Murder (FM)

Strict Liability (S/L)

STATE (S) v. BO (B)

Death of Devin (D)

Mens Reus – homicide

Homicide is the unlawful killing of another human being.

Murder 1 requires premeditation in addition to malice (see below for malice).

Voluntary manslaughter (VM)

Involuntary manslaughter (IM)

Involuntary manslaughter requires mere recklessness or gross (criminal) negligence.

A defendant who operates a dangerous instrument negligently and death occurs is

On balance, causation is established and B would likely be culpable for voluntary

Devin is dead so cannot be prosecuted for any crimes.

Accomplice liability is causing or helping someone commit a crime. It is not a separate

Conspiracy is an agreement to commit crime. It is a separate and inchoate crime

Deadly force can never be used to defend property.

Duress (coercion) applies when a crime is committed due to compulsion by another.

Diminished Capacity (DM)