CRIMINAL LAW OUTLINE Dolinko, Fall 2013

I.

II.

III.

ACTUS REUS
1.
All crimes require some sort of voluntary act (physical movement)
A. Almost every action is voluntary, as long as body is under conscious control
B. Includes habitual movements, conscious movements, and omissions
C. Possession is an act (MPC 2.01(4)) can be voluntary or involuntary
2.
Involuntary acts = where body is moving but actor not in control of movement (MPC 2.01(2) and
common law generally the same)
A. Spasms, convulsions, reflexes
B. Sleepwalking/unconsciousness
C. Under hypnosis/hypnotic suggestion
D. Movements not done by the effort or determination of the actor
i.
I.e. someone else caused it
3.
MPC 2.01(1) conduct must include a voluntary act (not required that every act be voluntary)
A. Changing the time frame can make act seem more/less voluntary
B. I.e. getting a seizure was involuntary, but choosing to drive was voluntary
4.
No defense when unconsciousness is due to voluntary intoxication
OMISSIONS
1.
General rule no duty to save another from harm
A. Exceptions that create a duty:
i.
Imposed by statute (such as good Samaritan laws)
ii.
Certain status relationship with another
1.
Parentchild, husbandwife, masterapprentice,
shipmastercrew/passengers, innkeeperdrunk customers
iii. Contractual duty
iv. Voluntarily assumed the care of another (and secluded them)
v.
Creation of risk if person who causes risk (criminally or negligently) omits to help,
they will be criminally liable
1.
May be liable even if risk creation was done innocently
2.
MPC 2.01(3) guilty for omission if:
A. Omission is expressly made sufficient by the law defining the offense
B. Duty to perform the act is otherwise imposed by law
MENS REA
1.
General overall blameworthiness, bad state of mind
2.
Specific specific state of mind required as an element of a crime
3.
Terminology:
A. Intent conscious goal to cause the result, or knowledge with substantial certainty that the
result would happen
B. Knowledge knowing or thinking that the result would happen, regardless of intent
i.
Awareness of attendant circumstances
C. Willful done voluntarily, intentionally, with evil motive
D. Negligence actor fails to perceive a substantial and unjustifiable risk of a particular result
i.
Failure to do what a reasonable person would do
ii.
Criminal negligence requires greater risk/gross deviation from standard of care
E.
Recklessness actor was aware of a substantial and unjustifiable risk but consciously
disregarded it and acted nonetheless
F.
Malice often interpreted to require that D was aware of the substantial risk of harm that
could result from his actions (recklessness as the minimum standard)
i.
Does not require any ill will toward injured person
1

4.
5.

6.
7.

8.

9.

General intent intentional action

Specific intent actions done with some specified purpose in mind (intent to commit further act,
special motive, or awareness of attendant circumstances)
A. Burglary breaking and entering with further objective of committing a felony inside
Transferred intent if actor attempts to harm somebody but harms another, the intent transfers to the
actual victim
Willful ignorance deliberately remaining unaware of a fact is considered knowledge of that fact
A. Some courts dont agree, consider it to be lack of knowledge
B. Deliberate and purposeful attempts to avoid learning different from failure to investigate
i.
Courts are more willing to hold that this means knowledge
C. MPC 2.02(7) knowledge can be established if person is aware of a high probability of the
existence of a fact, unless he actually believes it does not exist
MPC each element of a crime must have a culpable state of mind (general culpability not enough)
A. Three types of elements for a crime:
i.
Conduct what the actor does
ii.
Circumstance any circumstances/conditions that must be present for the action to be
a crime (may not require any culpability if strict liability crime)
iii. Result harm caused to society as a result of the conduct + circumstances
B. 2.02(2) establishes four levels of culpability:
i.
Purpose when (1) actors conscious objective to engage in the forbidden conduct or
produce the result, and (2) if actor is aware of attendant circumstances, or
believes/hopes they exist
ii.
Knowledge (1) actor is aware of culpable nature of conduct and of attendant
circumstances, and (2) actor is aware that it is practically certain his conduct will
produce the result
iii. Recklessness actor is aware of substantial and unjustifiable risk that a material
element exists but consciously disregards it
iv. Negligence actor is not aware of substantial/unjustifiable risk but should have been
aware, and inadvertently creates that risk. Depends on how a reasonable person would
have acted in that situation (same as recklessness but without the awareness)
C. If no specific culpability specified for a material element, it can be satisfied with purpose,
knowledge, or recklessness
D. If a prescribed culpability requirement does not refer to a specific material element, it should
apply to all of them
E.
Mental states are a hierarchy can be satisfied by the ones above it
F.
Subjective vs. objective standards:
i.
Purpose and knowledge are subjective depends on the specific actors mind
ii.
Negligence is objective depends on what a reasonable person would do
iii. Recklessness is subjective in that actor must have had awareness of the substantial
risk, but objective in that actions grossly deviated from what a reasonable person
would do
Strict liability no mens rea requirement for at least one material element
A. Typically applied to public welfare offenses (regulatory purpose, light punishment, low
stigma, usually met by due care/accused in best position to prevent the harm caused)
i.
I.e. speeding, selling alcohol to minors
ii.
Also applied to non public welfare offenses with severe punishments (controversial)
1.
I.e. statutory rape, bigamy, felony murder, certain drug crimes
B. Jurisdictional elements (location of the crime) traditionally no mens rea requirement
C. Strict liability offenses still require a voluntary act

D.

MPC 2.05 no strict liability for crimes that carry a sentence of imprisonment, only for
fines/civil penalties

HOMICIDES
IV.

V.

MURDER
1.
Typically defined as homicide with malice
2.
Mental states that can satisfy malice:
A. Intent to kill either intending the result or knowing with substantial certainty
B. Intent to inflict great bodily harm usually if it would be life-threatening
C. Depraved heart extreme recklessness or disregard for human life
i.
Consider the severity of the risk and the degree to which the actor disregarded it
D. Deadly weapon rule can infer intent to kill when deadly weapon used toward vital part of
victims body
3.
Degrees of murder usually only first and second degrees
A. First degree typically deliberate and premeditated
i.
Premeditation actor planned the killing, had time to reflect (but may not be required
that the actor ACTUALLY reflected)
1.
Californias three examples of how to prove premeditation: 1) actors prior
behavior that might indicate design to take life (planning), 2) prior relationship
that might give a reason to kill (motive), 3) manner of killing indicates that it
must have been a preconceived design
2.
Evidence of actions after a killing can be relevant but only circumstantial
B. Second degree all other kinds of murder
4.
MPC 210.2 murder when:
A. Committed purposely or knowingly
B. Committed recklessly under circumstances manifesting extreme indifference to the value of
human life
i.
Presumed if actor is committing, attempting to commit, or is an accomplice to one of
the specifically mentioned felonies (robbery, rape, arson, burglary, kidnapping, or
felonious escape)
C. Murder is felony in the first degree
D. MPC does not differentiate between first degree and second degree murders left to the states
to decide the distinction
MANSLAUGHTER
1.
Homicide without malice
2.
Voluntary intentional killing (depraved heart or intent to inflict GBH is enough)
A. Would have been murder if not for provocation or some other excuse
3.
Provocation actor was enraged by legally adequate provocation that made him kill (partial defense)
A. Theory behind it is that a reasonable person would have become so enraged as to kill (but
would a reasonable person ever kill?)
B. Three requirements for provocation:
i.
Killing occurs in the heat of passion (rage/anger)
ii.
Produced by legally adequate provocation
iii. Done before enough time elapsed to allow actor to calm down (blood to cool)
4.
What is legally adequate provocation?
A. Must inflame the passion of a reasonable man and cause him to act in the moment from
passion rather than from reason (would be tempted to kill)
B. Ordinary man must be incapable of reflection, otherwise it would be premeditated
C. Circumstances of adequate provocation:
i.
Extreme assault/battery upon D
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VI.

ii.
Mutual combat
iii. Ds illegal arrest
iv. Injury/serious abuse of close relative
v.
Sudden discovery of spouses adultery
D. Words alone are not sufficient provocation
i.
This rule is being relaxed can be sufficient if words describe something that if actor
had seen it then it would be provocation (i.e. describing the murder of Ds baby)
E.
Not provocation if the victim was not the source of the provocation
F.
Rekindling of the provocation some time after the original event is not sufficient
5.
Heat of passion only depends on actors subjective mind if actor mistakes the circumstances or kills
the wrong person by accident, could still be provocation
A. Actors beliefs must be reasonable
B. Legally adequate provocation is an objective standard extremely bad temper not allowable
for provocation claim
6.
How much of Ds characteristics should be considered for the reasonable person standard?
A. Should include only characteristics that affect the gravity of the provocation
B. Dont include characteristics that affect Ds ability of self-control
7.
MPCs formulation of provocation = extreme mental or emotional distress (210.3)
A. Subjective based on Ds thoughts/mental state at the time of the killing
i.
Determined from the viewpoint of person in Ds situation under circumstances as D
believed them to be
B. Needs to have a reasonable explanation or excuse (objective component)
C. Broader than provocation words alone are sufficient, no cooling-off limitation, subjective
UNINTENDED KILLING
1.
Killing was not intentional, mental state either recklessness or criminal negligence
2.
Involuntary manslaughter can still be supported by wanton/reckless conduct that doesnt rise to
level of depraved heart murder
A. Recklessness still requires substantial and unjustifiable risk
B. Usually convictions are for gross negligence either negligence + awareness, or major
departure from reasonable conduct without knowing the risks
C. To determine criminal negligence, have to balance factors:
i.
Severity of the risk
ii.
Likelihood of the risk
iii. How the risk was created
D. MPC 210.3(1)(b) manslaughter when committed recklessly
i.
210.4 negligent homicide as a separate offense (felony in the third degree)
1.
Does not specifically require gross negligence
3.
Unintended murder depraved heart murder (second degree)
A. Requires more than just recklessness extreme indifference to the value of human life
i.
Recklessness + malice
B. Reason the risk was created is very important if the risk was excessively unjustifiable (such
as Russian Roulette or driving drunk/recklessly), then it would likely be murder
C. Intent to inflict great bodily harm is murder category under common law (second degree)
i.
Also murder under MPCs extreme indifference theory D was aware of substantial
risk of death but disregarded it
D. In common law, subjective awareness not always necessary can be inferred from gross
deviation of behavior
i.
For instance, if someone thinks there are no bullets in a gun but shoots it at somebody,
he is aware that if there were bullets that could cause serious injury

E.

MPC 210.2 requires that D be aware of substantial/unjustifiable risk he was creating

(explicitly requires recklessness)
i.
Awareness is required even if grossly negligent, cannot be murder
ii.
2.08(2) if D lacked awareness because of voluntary intoxication, it can be murder
4.
Misdemeanor-manslaughter rule functions like felony murder but with misdemeanors instead
A. Also called the unlawful-act doctrine
B. Common law involuntary manslaughter if killing was in the commission of an unlawful act
or commission of a lawful act which might produce death in an unlawful manner, without due
caution or circumspection
C. Limitations:
i.
Proximate cause needs to be a causal connection between unlawful act and death
ii.
Regulatory offenses some states restrict doctrine to malum in se misdemeanors
iii. Dangerousness can be limited to only misdemeanors that rise to level of criminal
negligence or to violations that exhibit a marked disregard for safety of others
VII. FELONY MURDER
1.
General idea killing is murder if it was caused with the intent to commit a felony
A. First degree if one of listed felonies
B. Does not need to be foreseeable (if victim dies of heart attack during robbery, its murder)
C. Needs to be a causal connection between the felony and the death
D. Essentially strict liability does not depend on mental states, can apply even if coincidental
2.
Similar depraved heart murder committing a felony shows extreme indifference to the value of
human life, any deaths as a result were caused recklessly
A. MPC 210.2(1)(b) presumes recklessness/indifference if actor is engaged in a felony
(robbery, rape, arson, burglary, kidnapping, or felonious escape)
i.
MPC uses this in place of felony murder much more limited
3.
Limitations:
A. Felony must be inherently dangerous to human life
i.
Can be the nature of the crime in the abstract (dangerous per se)
ii.
Some courts look at the crime as committed/circumstances surrounding it
1.
By its circumstances create a risk of death, or
2.
High probability that human death will result
B. Merger doctrine felony must be somewhat independent from the killing. Cant take
inherent part of the homicide and make that the underlying felony
i.
I.e. cant use assault with deadly weapon as the basis for felony murder
ii.
Common tests:
1.
Whether the felony is included in fact in the homicide
2.
Whether the felony is independent of the homicide
iii. Independent felonious purpose test underlying felony must not have the purpose
of causing death or severe injury
iv. CURRENT RULE if elements of the felony have an assaultive aspect, then it
merges
1.
Assaultive aspect requires threat of immediate violent injury
C. Only applies when act of killing is done in furtherance of the felony
i.
After the commission of the felony no felony murder rule once felon has reached a
state of safety
1.
Felony murder does apply during a getaway/attempt to evade police officers
ii.
If act done by co-felon is unrelated to the felony, then no felony murder (i.e. robs a
passerby for fun while setting fire to a building)
iii. Refer to conspiracy for more on acts in furtherance of a felony
D. What about deaths not caused by the felons themselves?
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Agency theory person that does the killing has to be one of the agents of the felony
Proximate cause theory felony murder if death was caused by the commission of
the felony and was within the foreseeable risk of committing the felony
1.
Provocative act doctrine in committing a crime foreseeably dangerous to
life, if D provokes a person who then foreseeably kills someone in response,
that makes D and all accomplices liable
a.
This is essentially a proximate cause theory under
recklessness/depraved heart
b.
Does not work if the provoking felon is the victim needs to be a death
to a third party
Popular view no felony murder for the death of a felon
i.
Killing a felon is justified, so others cant be held liable for murder for something that
was justified (wasnt wrong in the first place)
1.
But killing a felon is not always justifiable
ii.
Debated many jurisdictions do allow for felony murder for death of co-felon
1.
Especially if felon is killed by a co-felon in furtherance of the felony
i.
ii.

E.

MISTAKES
VIII. MISTAKE OF FACT
1.
D violates the law but is mistaken about some fact that would make his action not criminal
2.
Common law approaches:
A. Broad mens rea (general intent crimes) if you do something thats morally culpable, you
should be liable even if you made a mistake (moral wrong theory)
i.
Mistake of fact has to be reasonable to be a defense
ii.
Also the lesser-crime principle instead of morally wrong, has to be criminally
wrong (i.e. guilty of larceny but it was worth more than you thought)
B. Specific mens rea (specific intent crimes) since D did not have the specific mens rea
required of the offense, he should not be liable for that offense
i.
Reasonableness of the mistake is irrelevant
C. Moral wrong and lesser-crime used for offenses involving minors, sexual behavior, or drugs
i.
In CA, defense to statutory rape if actor believes the other person is over 18
(reasonableness not necessary)
1.
But reasonable mistake of age is no defense for child molesting (strict liability)
3.
MPC 2.04 defense if it negates the purpose, knowledge, belief, recklessness, or negligence
required to establish a material element of the offense
A. If D would have been guilty of a lesser offense if the facts were as he supposed, D would only
be charged with the lesser offense
4.
MPC says that since recklessness is the minimum required, if D is not aware then D has a defense
regardless of the reasonableness of Ds mistake
A. In this regard, mistake of fact can be a failure of proof defense prosecution failed to prove
that D was at least reckless about the material element
5.
Common law mistake is no defense for strict liability crimes
A. I.e. regarding age of victim for statutory rape charges
i.
MPC 213.6(1) strict liability only under 10 years old. Otherwise, mistake is an
affirmative defense with burden on D to prove that mistake was reasonable
6.
Rape general intent crime
A. Common law most courts permit mistake of fact regarding consent if belief is honest and
reasonable
B. MPC even an unreasonable mistake would be a defense
IX. MISTAKE OF LAW
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1.
2.
3.

4.

5.

X.

D makes a mistake about the law, if the law was as he believed then D would not be guilty of a crime
Common law traditional notion mistake of law is not a defense
Two types of mistakes of law:
A. Direct or same law I didnt know what I was doing was illegal (mistake about the
direct law violated)
i.
Includes misreading of the law and ignorance of the law
ii.
Almost never a defense, even if reasonable (for most courts, even if actor relies on
advice from a public official)
B. Collateral or different law law mistaken about is not one that D is accused of violating
i.
Actor knew about the law but didnt know his specific actions violated that law due to
ignorance about a second law
ii.
Typically a mens rea defense negates required mens rea for a material element
1.
Only for specific intent crimes
Lambert rules direct mistake of law is a defense if:
A. Crime committed was an omission/passive conduct
B. No circumstances to give D notice of the law
C. Law in question serves no practical purpose (i.e. only makes things easier for law
enforcement to keep an eye on ex-felons)
D. Law carries heavy penalties
MPC rules regarding mistakes of law:
A. 2.02(9) knowledge/recklessness/negligence regarding the law is not an element of an
offense unless the definition of the offense requires it
B. 2.04(1) Ignorance/mistake as to the law is a defense if it negatives the mens rea
requirement of a material element of the offense
C. 2.04(3) Exceptions to no direct mistakes of law:
i.
If the law was not published/made reasonably available
ii.
Reasonable reliance on an official statement of the law later determined to be invalid
or erroneous
D. 2.04(4) D must prove mistake by a preponderance of the evidence

CAUSATION
1.
Only an issue for crimes with a result element (homicide)
2.
But-for cause without the actors conduct, the result would not have happened as/when it did
A. Ds conduct does not have to be the sole cause of the harm
3.
Proximate cause sufficiently close relationship between conduct and result to hold actor liable
A. Narrower definition than torts
B. Courts tend to find proximate cause if Ds behavior is particularly bad
C. Foreseeability usually necessary for proximate cause
i.
Highly extraordinary result standard not guilty if result is highly extraordinary
ii.
Foreseeability not always necessary (felony murder)
iii. Two ways to view foreseeability:
1.
Actual chain of events (specific causal mechanism) has to be foreseeable (too
narrow)
a.
Mostly applied to manufacturers
2.
Only the ultimate harm has to be foreseeable (too broad)
D. Intervening causes some subsequent actor or event should make D not legally responsible
i.
If intervening cause is not foreseeable (independent/coincidental), D not guilty
ii.
Even if foreseeable, D may not be liable
1.
I.e. buying a plane ticket for someone hoping it crashes

2.

XI.

No proximate cause for assisting someone with suicide (i.e. giving them a gun)
unless victim was forced/deceived (MPC 210.5(1) adds duress)
iii. Human intervening action must be free/willful act of another person
1.
Different from natural occurrences
2.
But no intervening cause if subsequent actor was constrained by compulsion
of duty, duress, or emergency caused by D
a.
Subsequent actor has to be legally irresponsible/insane
iv. Dependent intervening cause foreseeable response or reaction to Ds conduct
1.
Usually, D would be liable for dependent intervening causes
2.
Example medical malpractice when someone is injured
v.
Omissions rarely a superseding cause (if you beat a kid up and dad lets him die)
vi. Distinguish from pre-existing conditions (such as victims health) that are a but-for
cause of the harm not considered intervening forces, D is guilty
vii. Subsequent actors reckless choices are intervening causes only when they are fully
voluntary. If they were the result of a situation created by D, then D would be liable.
Argument is that the subsequent actors was acting in a reasonable response
1.
I.e. if D has a knife and chases after a man, who runs onto a street and gets hit
2.
Mutual encouragement of reckless behavior is not an intervening cause
a.
I.e. drag races, Russian Roulette
E.
If D intended for particular harm to happen but the result was achieved with a different chain
of events, D is guilty (intended consequences)
i.
Same thing if a different person was injured (transferred intent doctrine)
4.
MPC 2.03(1) cause when (a) conduct is antecedent but for which the result would not have
occurred and (b) the relationship between conduct and result satisfies additional causal requirements
imposed
A. (2) For purpose/knowledge, no proximate cause when result is not within the purpose or
contemplation of the actor unless (a) injury is less serious than intended or if someone other
than the intended target was injured (transferred intent) or (b) result involves same kind of
injury intended and is not too remote or accidental to have a just bearing on actors liability or
on the gravity of the offense
B. (3) Same thing for recklessness/negligence
C. (4) For strict liability elements, result must be a probable consequence of actors conduct
ATTEMPT
1.
Complete attempt actor has done everything he thought necessary to complete the crime
2.
Incomplete attempt still further actions necessary to complete the crime
3.
Mens rea:
A. Traditional rule to be guilty of an attempt, must have the purpose of producing the result,
even if completed crime would only require recklessness/negligence (specific intent to kill)
i.
Traditional law unclear about knowing with substantial certainty that a result will
occur
1.
Bomb on a plane with intent to destroy cargo but knowing that pilot will die
too. If bomb doesnt go off, is that attempted murder?
ii.
Attendant circumstances are treated the same as the completed crime
1.
For rape, actor only needs recklessness regarding consent
B. MPC 5.01(1) guilty of attempt if, acting with the kind of culpability otherwise required for
the crime, he (a) purposely engages in conduct which would constitute the crime if the
attendant circumstances were as he believes them to be or (b) acts with the purpose of causing
or with the belief that actions will cause the result without further conduct on his part
i.
These sections deal with complete attempts
C. MPCs mens rea requirements for each type of material element:
8

4.

5.

i.
Conduct elements D has to have the purpose of engaging in that conduct
ii.
Result elements D has to have purpose or belief that actions will cause the result
iii. Circumstance elements Whatever is required for the completed offense
Actus reus:
A. Goal is to punish those who actually attempt to commit the crime, not those that merely are
guilty of preparation
B. Last step doctrine D must take the last step he was able to take or thought was necessary
i.
Rejected too limiting
C. First step doctrine D is guilty of attempt as soon as he takes the first step toward the crime
i.
Rejected far too broad, can convict people for preparation alone
D. Dangerous proximity test D must be so near to completing the crime that the danger of the
result is great
i.
Also conduct which tends to effect the commission of the crime
ii.
Focuses on the size of the gap between Ds actions and the goal, but not what D has
already done
E.
Equivocality test how clearly Ds actions reveal intent
i.
Acts themselves must be sufficient to show the guilty purpose even if you know D
has the intent, if Ds actions dont reveal that intent then D not guilty for attempt
ii.
Very limiting, hard to convict for attempts this way
iii. Not widely followed
F.
Traditionally, abandonment of the attempt is no defense if actus reus requirement is met
i.
But some courts have allowed it as a complete defense under circumstances
manifesting a voluntary and complete renunciation of the criminal purpose
1.
Same as MPC 5.01(4)
G. MPC 5.01(1)(c) D must purposefully do something that is a substantial step in a course of
conduct planned to culminate in his commission of the crime under the circumstances which
he believes them to be
i.
This section deals with incomplete attempts focuses on what has already been done,
not what D has left to do
ii.
5.01(2) substantial step must be strongly corroborative of Ds criminal purpose
1.
This is similar to the equivocality test
2.
(a) through (g) examples
Impossibility
A. Generally two types legal and factual (but hard to differentiate between the two)
i.
Legal impossibility typically considered to be that if the act was completed as
intended, it would not be a crime (thought you did something illegal but it wasnt)
1.
But this is not a good distinction
2.
This is a defense
ii.
Factual impossibility intended act was rendered impossible because of some
attendant circumstance (thought you did something illegal but didnt actually do it)
1.
I.e. shooting at an empty bed thinking theres someone in it
2.
Usually not a defense unless the fact mistaken is inherently impossible
a.
Try to sink a boat with a slingshot no conviction for attempt
B. Better distinction true/pure legal impossibility
i.
What the actor intended to do was never actually a crime in the first place
ii.
I.e. giving an abortion thinking its illegal in that state but its actually legal
C. MPC 5.05(2) if conduct is so inherently unlikely to result in the commission of a crime and
does not present a public danger, then D may be found not guilty by discretion of the court
i.
So somebody who tries to kill another person by clapping their hands would not be
found guilty
9

XII. ACCOMPLICE LIABILITY

1.
An accomplice is somebody who helps the principal actor carry out a crime
2.
Sentencing:
A. Accomplices are punished the same as the principal, charged with the substantive crime
B. Accessory after the fact punished separately with obstruction of justice
C. Accomplices can be charged regardless of whether the principal has been tried/convicted
3.
Mens rea:
A. Common law requirements for accomplicity:
i.
Must have the specific intent to aid/encourage the perpetrator to engage in the conduct
constituting the offense or the actus reus of the offense
ii.
Must have the required mens rea of the target crime
B. Not necessary that the accomplice know the perpetrators actions would be criminal (mistake
of law is no defense)
C. Knowledge of ensuing criminal acts is not sufficient otherwise, all store owners could be
accomplices for knowingly selling things that will be used illegally
i.
New York criminal facilitation for knowingly helping someone without intent (lesser
punishment)
ii.
For more severe crimes (murder), knowledge can be sufficient
D. MPC 2.06(3)(a) accomplice requires the purpose of promoting/facilitating the commission
of the offense
E.
Result elements the same kind of mens rea is required as the target offense
i.
Mostly relevant for unintended results D can still be an accomplice even if death was
not the intention of the actions
1.
If a guy encourages a driver to drive recklessly, then he is an accomplice to
vehicular manslaughter/depraved heart murder if driver kills someone
ii.
MPC 2.06(4) person who causes the result element is an accomplice if he acts with
the culpability required for the commission of the offense
F.
Attendant circumstances courts will not hold someone liable as an accomplice to strict
liability crimes unless they are actually aware of the circumstances
i.
I.e. if taxi drivers license is suspended, the passenger is not an accomplice had no
knowledge
ii.
Some courts require at least negligence D should have known of the circumstances
iii. Often comes down to policy if crime is particularly heinous, then mens rea
requirement for circumstance elements will be lower
iv. MPC avoids answering this question, leave it to juries/courts to decide
G. Natural and probable consequences doctrine
i.
Accomplice is not only guilty for the target crime but also for any crimes that are
natural and probable consequences of the conduct
1.
Depends on foreseeability
2.
Negates the mens rea requirement of purpose/intent for the crime, and also can
negate the mens rea requirement for the target crime
ii.
D has to be an accomplice to a first crime as well
iii. In practice, largely limited to when the second crime is a homicide
iv. MPC rejects this doctrine
4.
Actus reus:
A. It is not necessary for an accomplice to be a but-for cause of the crime
B. At common law, the accomplice actually has to aid the perpetrator attempt is not enough
i.
Typically three ways to aid:
1.
Physical conduct (driving getaway car)
10

2.
Psychological influence (encouragement)
3.
Omission
C. MPC 2.06(3)(a) accomplice if acting with the purpose of promoting or facilitating D
i.
Solicits the perpetrator to commit the crime (commands, encourages, or requests)
ii.
Aids or agrees or attempts to aid the perpetrator in planning/committing
iii. Has a legal duty to prevent the crime and fails to do so
D. MPC 5.01(3) if D engages in conduct that would establish complicity but the perpetrator
does not commit or attempt the crime, D is still guilty of attempt to commit the target crime
i.
Important to remember that D must still commit the actus reus of attempt
E.
MPC 5.02(2) solicitation is established even if the actor fails to communicate with the
recipient of the solicitation
i.
Reinforces that attempted accomplicity is a crime under the MPC
5.
Innocent agent or instrumentality doctrine can still be an accomplice if the principal perpetrator
of the offense is innocent or has some personal excuse/justification
A. This is an exception to the common law rule that an accomplice cant be convicted unless a
crime was actually committed
B. MPC 2.06(2)(a) legally accountable for acts of another when causing an innocent or
irresponsible person to engage in conduct
6.
Relative culpability between the parties:
A. Common law rule the acts of a feigned accomplice cannot be imputed to the defendant (so
an accomplice to a principal who is really just acting cannot be convicted)
i.
No crime is committed if the person is faking (sort of a justification defense)
ii.
Defense of entrapment when law enforcement is the faking party
B. Excuses or partial excuses typically do not transfer to accomplices
i.
Duress/provocation/imperfect self-defense only apply to principal, not to accomplice
C. Justifications can transfer to accomplices
i.
Self-defense could transfer to an accomplice in certain situations
D. Policy-based defenses do not transfer to accomplices
i.
Actions by police are justified but do not transfer
E.
If principal lacks appropriate mens rea but the accomplice does have the mens rea, then the
principal can be found not guilty while the accomplice is guilty
i.
Accomplice can also be guilty of a greater crime than the principal, depending on the
mens rea (semi-innocent agent theory, if the principal is not fully informed of
circumstances/accomplices intentions)
1.
This works mostly for homicides, which are considered to be a single crime
with grading based on mens rea
2.
For many other crimes, accomplice can only be guilty of the crime the
perpetrator is guilty of
F.
Victims cannot be an accomplice (i.e. statutory rape)
i.
MPC 2.06(6)(a) states this
XIII. CONSPIRACY
1.
Agreement by two or more people to commit a crime (agreement to assist with the commission of the
crime, with the purpose of carrying out that crime)
A. Inchoate crime charge of conspiracy for the agreement itself
i.
Requires the intent to agree and the intent to carry out the criminal purpose
ii.
Actus reus = act of agreeing, agree to carry out the crime/solicit to commit the
crime/aid someone in committing the crime
iii. Can be convicted of conspiracy even if the target crime is achieved (no merging)
iv. Most states treat this as a lesser offense than the target crime
B. Accessory liability conspirators are liable for actions of others in the group
11

2.

3.

Actus reus:
A. Conspiracy is punishable from the moment the agreement is made
i.
Punishable much earlier than attempt
B. Agreement does not need to be made by both parties can agree to parts of the conspiracy but
not others
C. Agreement does not require contact between the parties can find an agreement with
circumstantial evidence (tacit agreement)
i.
I.e. raising movie ticket prices (monopoly) without expressly agreeing to do so
ii.
But in many cases, parallel action is not enough to convict for a conspiracy
1.
Inference of agreement permissible only when nature of acts logically would
require coordination and planning
2.
Independent motives of carrying out the parallel action means no conspiracy
D. Some courts have developed an overt act requirement one or more conspirators must do
any act to effect the object of the conspiracy
i.
This is similar to the first step approach for attempt almost any act can suffice as
the overt act to make everybody guilty of conspiracy
1.
Some courts have required a stronger/more clear overt act (substantial step)
ii.
MPC 5.03(5) overt act is required for conspiracies to commit a crime that is not a
first/second degree (so no overt act required for the most heinous crimes)
Mens rea:
A. Intent to agree mostly fictional, satisfied by the agreement itself (hard to agree to do
something without intending to)
B. Intent to commit target crime usually required cannot be satisfied by knowledge
i.
For felonies/greater crimes, knowledge may be sufficient (not a prevalent view)
ii.
Ways that knowledge is enough to show intent to commit a crime for sellers:
1.
Seller has a stake in the illegal venture or charges higher prices
2.
No legitimate use for the goods/services exists
3.
Volume of business with illegal buyer is grossly disproportionate to legal
demand
4.
Illegal sales are a high proportion of the sellers total business
iii. MPC 5.03(1) conspiracy requires the purpose of promoting/facilitating the crimes
commission
C. Material elements of the target offense requires at least the same mens rea
D. Result elements must act with the purpose of bringing about that result
i.
No conspiracy to commit reckless murder because you cant intend to do so
E.
Circumstance elements of the target offense:
i.
Those that affect the gravity of the crime, but the underlying action is still illegal Ds
can be convicted of the higher offense without any awareness of that circumstance
1.
I.e. selling drugs within 1000 feet of a school is a higher crime, if D didnt
know he was close to a school he can still be convicted for conspiracy of the
higher crime. But how can D agree to do something he didnt know he was
doing?
ii.
Those that are essential to the criminality MPC says that it should be left to the
courts to decide
1.
I.e. A helps B have sex with C, but C turns out to be underage. Did A and B
commit a conspiracy to commit statutory rape? How could A and B agree to do
something they didnt even know they were doing?
iii. Think of it in terms of the goal of convicting people for the offense for strict
liability, there are stronger policy reasons to convict anyone, and that could apply to

12

4.

5.

6.
7.

8.

conspiracy to do it as well (i.e. for statutory rape, goal is to make sure people know the
age of the person they want to have sex with)
F.
Corrupt motive (Powell) doctrine agreement must be animated by a corrupt motive or
an intention to engage in conduct known to be wrongful
i.
If two people agree to do something in good faith not knowing its illegal/wrongful,
they should not be punished with conspiracy (functions as mistake of law defense)
ii.
Powell case says that for maalum prohibitum crimes (act is only wrong because it is
made illegal by law), you need to be aware that it is against the law before being
convicted for conspiracy to commit it
iii. MPC rejects the Powell doctrine
Pinkerton Doctrine
A. Conspirator can be liable for any crime a co-conspirator commits in furtherance of the
conspiracy without having to satisfy the requirements for accomplice liability
B. Alternate version responsible for substantive criminal acts committed by another if they are
reasonably foreseeable as the necessary or natural consequences of the conspiracy
i.
Foreseeability requirement indicates the need for some sort of nexus between Ds role
in the conspiracy and the illegal conduct of a co-conspirator
ii.
This can extend to crimes not in furtherance of the conspiracy, even AFTER the
original conspiracy goal was completed
C. Goal is to punish conspirators for crimes that were committed with the purpose of facilitating
the commission of the target crime
i.
If the primary goal is to break a guy out of jail, if somebody kills a prison guard all
conspirators should be liable for it
D. Pinkerton liability is not retroactive if somebody joins a conspiracy, he is not liable for all
crimes that occurred prior to his entrance
E.
Some courts have restricted the Pinkerton doctrine to only major participants in the
conspiracy who would have knowledge of the circumstances of the other substantive offenses
i.
This would make those other crimes foreseeable
F.
MPC rejects Pinkerton doctrine, liability only if conditions to be an accomplice are met
Conspiracy to do something immoral but not illegal was punishable under common law
A. Same with conspiracy to corrupt public morals but both have been more or less rejected
B. Can be liable for conspiracy to violate the civil code
Impossibility is no defense to conspiracy
Conspiracy is a continuing offense ends either when conspiracy goal is completed or when
conspiracy is abandoned
A. But concealing facts/covering up after completion does not further the conspiracy (unless
theres direct evidence of an express original agreement to do so)
B. MPC 5.03(7)(a) conspiracy is continuing and terminates when objective crimes are
committed or if conspiracy is abandoned by D and those he conspired with
Abandonment of a conspiracy occurs when none of the conspirators is engaging in any action to
further the conspiratorial objectives. Prosecution is barred once statute of limitation runs
A. If an individual conspirator wants out of the conspiracy, he must affirmatively act inconsistent
with the object of the conspiracy and communicate his abandonment to co-conspirators in a
reasonable manner or notify law enforcement of the conspiracy
i.
Communication must be direct
ii.
Once abandoned, cannot be prosecuted for subsequent actions by co-conspirators
B. D is still guilty of the original conspiracy
i.
MPC 5.03(6) allows for renunciation as a complete defense, only if D also
succeeds in preventing the commission of the criminal objectives
ii.
Many states follow the MPC on renunciation
13

MPC 5.03(7)(b) Abandonment is presumed if neither D nor anyone else in the conspiracy
does any overt act in pursuance of the conspiracy during the statute of limitations
i.
(c) if individual abandons the agreement, conspiracy terminates only if he advises
his co-conspirators of his abandonment OR if he informs law enforcement
Common law can punish for conspiracy and for the completed target crime cumulatively
A. MPC cannot punish cumulatively if the conspiracy was specifically to carry out that crime
i.
If the conspiracy was to commit multiple crimes, then yes cumulative punishment
Parties to the conspiracy:
A. Whartons Rule when it is impossible to commit the substantive offense without
cooperative action, preliminary agreement to commit the offense is not a conspiracy
i.
I.e. if two people agree to have sex but are related incest, requires 2 people
ii.
But if the group conspiring is larger than the minimum number required, they can be
convicted for conspiracy
iii. MPC rejects Whartons Rule, allows conviction for any conspiracy as long as its not
punishing cumulatively for the target criminal offense as well
B. Gebardi Rule no conviction for conspiracy if the actor would not be guilty of the target
crime due to a recognized rule of justice or policy exempting from prosecution
i.
MPC 5.04(2) supports this
C. Traditional view is that conspiracy is bilateral both people conspiring must have intent to
commit the crime
i.
If one person is faking, then the other person cannot be guilty for conspiracy
D. However, MPC 5.04(1) allows for conviction for unilateral conspiracies essentially view
each conspiracy from the different sides of the agreement and prosecute accordingly
i.
If one person is faking, the other who is earnest and has the intent can still be guilty
ii.
Legal status of the other person regarding the conspiracy doesnt matter (whether they
have been acquitted, whether they cannot be prosecuted, etc.)
iii. EXAMPLE smuggler working for two different retailers. From smugglers
perspective, its one big conspiracy and can be convicted as such. From retailers
perspective, its two separate conspiracies and each retailer can only be convicted for
the part of the conspiracy they are involved in
iv. Problem this rule is eliminating the actus reus requirement of a true agreement
between the parties. Under unilateral, the parties arent agreeing on the same things
C.

9.

10.

EXCULPATION/AFFIRMATIVE DEFENSES
XIV. SELF-DEFENSE
1.
Justification defense acquitted of all charges
A. If belief that self-defense is necessary is unreasonable, functions more like an excuse
2.
Traditional rule privileged to use self-defense against another if actor:
A. Reasonably believes
B. Such force is necessary to defend against the others
C. Immediate/imminent use of unlawful force against the actor/third person
D. And the actors force is not disproportional/excessive
3.
MPC 3.04(1) use of force upon another is justifiable when the actor believes such force is
immediately necessary for the purpose of protecting himself against the use of unlawful force by the
other person on the present occasion
A. Belief does not need to be reasonable
B. Can defend against a murder charge, but if his belief was unreasonable then can be charged
with another form of homicide (imperfect self-defense)
4.
Imperfect self-defense if belief was unreasonable, drops charge from murder to manslaughter
5.
Common law any threat of great bodily harm is sufficient to justify deadly force in self-defense
14

MPC 3.11(2) deadly force when a person acts with the purpose of causing or knowingly
creates a substantial risk of inflicting death/great bodily harm
i.
Shooting at someone is always deadly force
ii.
Threats of kidnapping and rape are also sufficient for self-defense (3.04(2)(b))
MPC states that reasonableness standard is what a reasonable person would do in the actors situation
A. Issue how much of the actors situation do you consider?
B. Many courts have a hybrid standard that includes some characteristics of the actor
Battered-womans syndrome evidence is usually allowed to show reasonableness of the belief
that deadly force was necessary for self-defense (given Ds circumstances/situation)
A. Shows why D didnt resort to other measures (such as retreat or notifying someone)
B. Learned helplessness explains why Ds stay with their abusive husbands
C. The reasonableness standard does NOT change to a reasonable battered woman the
evidence just affects what a reasonable person would do in Ds situation
D. Imminence requirement contested issue whether to allow BWS testimony when there is no
imminent threat of deadly force
i.
BWS can show that victims are better able to judge when deadly force is likely to be
used against them but thats not relevant to the reasonableness of Ds conduct
ii.
Argument that imminence requirement should be relaxed in certain situations (BWS,
kidnapping, etc.) but that would make self-defense an excuse, not a justification
1.
Would also allow for self-defense in many undesired situations
2.
Person being killed would not legally be able to defend themselves if the other
persons actions are legally justified by self-defense
iii. Most courts do not allow self-defense when BWS victim kills husband in his sleep
E.
If self-defense not appropriate for a particular BWS case, the syndrome can be used to reduce
murder to a lesser homicide charge (i.e. provocation/EMED)
MPC on imminence requirement immediately necessary
A. Leaves it a bit more vague so it can be relaxed in certain situations
Third parties that come to the aid of the person in peril can use deadly force to prevent the attack only
under the same circumstances that would justify the use of deadly force by the direct victim
A. For BWS, asking a neighbor for help to kill husband is only a defense for the neighbor if there
is threat of imminent force against the BWS victim at the time of the killing
If D kills attacker in fully justified self-defense but also accidentally kills bystander, D should not be
held liable for the death of the bystander (transferred intent justification transfers to victim)
A. If D acts recklessly to defend himself, common law states that D cannot be convicted for
reckless manslaughter/endangerment
i.
MPC 3.09(3) D could be convicted for reckless manslaughter/endangerment
Most courts place burden to disprove self-defense on the prosecution
Rule of retreat
A. No self-defense if D knows he can safely retreat
i.
MPC 3.04(2)(b)(ii) supports rule of retreat
B. Only a restriction on the use of deadly force dont have to retreat if you are using nondeadly force in response
C. Only applies to non-aggressors if instigated the confrontation, have a duty to retreat
D. Hard to determine whether D knew he could have retreated with complete safety
i.
Needs to be a subjective awareness
E.
Castle exception no requirement to retreat from ones home or workplace
i.
Never need to retreat from intruders
ii.
Most say you dont need to retreat from guests
iii. Disagreement about whether or not you must retreat from co-occupants
A.

6.

7.

8.
9.

10.

11.
12.

15

MPC 3.04(2)(b)(ii)(1) do not need to retreat from co-occupant in home, but

DO need to retreat from a coworker at place of work
F.
Many states have eliminated a rule of retreat entirely (stand your ground laws)
13. Aggressors of the incident typically no self-defense allowed
A. If the aggressor uses self-defense, it usually becomes manslaughter (provocation/imperfect
self-defense)
B. Act of aggression = affirmative unlawful act reasonably calculated to produce injurious/fatal
consequences
C. Most states require that the act of aggression be something illegal
i.
Others say any provocation is enough to be an act of aggression
1.
Even if minor provocation is met by grossly excessive response, no SD
ii.
Some say that the first person to threaten with deadly force becomes the aggressor
1.
If minor provocation met with excessive deadly response, yes SD
D. MPC 3.04(2)(b)(i) no self-defense for actor who, with the purpose of causing death/serious
bodily harm, provoked the use of force against himself
i.
MPC therefore labels the aggressor as the first to threaten with deadly force can use
non-deadly force and still not be the aggressor
XV. NECESSITY
1.
Also called choice of evils defense
2.
Justification defense what actor did was not wrong under the circumstances
3.
Common law actor reasonably believed his conduct was necessary to avoid a public/private injury
greater than the injury which might reasonably result from his conduct
A. Actor cannot be at fault for creating the risk of imminent harm (not even reckless/negligent)
B. Threat of harm sought to be avoided must be imminent/reasonably believed to be imminent
C. There must be no legal alternative available to the actor to prevent the harm
D. Harm sought to be avoided must be greater than the harm caused by the actor by an objective
standard, not by what the actor believed to be greater/less
4.
Necessity is sometimes limited to emergency situations created by natural occurrences
5.
Medical necessity not typically a valid reason (for crimes such as growing marijuana)
A. Also not acceptable for economic necessity (i.e. stealing food so you dont starve)
6.
Actor must reasonably anticipate a direct causal relationship between conduct and harm prevented
A. Cant go into IRS building and disrupt the office out of necessity to protect starving people
around the world (indirect civil disobedience)
i.
A constitutional government policy cant be considered an evil
ii.
There are legal alternatives to indirect civil disobedience
7.
Issue do you view the harm caused by the actor in the abstract or in the specific situation?
A. MPC says abstract (harm sought to be prevented by the law defining the offense)
i.
This can cause problems almost all harm is greater in the abstract
8.
MPC 3.02(1)(a) conduct which the actor believes to be necessary to avoid harm/evil is justifiable
if harm sought to be avoided is greater than harm sought to be prevented by the law defining the
offense charged
A. 3.02(2) If actor is reckless/negligent in bringing about the situation, then justification is not
available for any offense where recklessness/negligence is sufficient to establish culpability
i.
But can be a defense to something that requires purpose/knowledge
B. No imminency requirement, not limited to emergencies from natural forces
9.
MPC allows for necessity defense in the killing of an innocent person in some situations (as long as
more lives are saved than are lost)
A. Many common law courts reject this killing an innocent person is never necessary
B. Hard to come up with a rigid rule that would apply appropriately to every case
1.

16

MPCs approach right of self-defense prevails over necessity when there are 3 aggressors
and one victim (can kill 3 to save one)
i.
But when bystanders would also be killed from the act of self-defense, then necessity
comes into play
10. With killing people, consider whether the threat of harm to a greater number is just being diverted to
fewer or if the actor must make an entirely new threat to a person who was originally not under threat
11. Necessity as a defense to torture since it is usually uncertain whether torture will actually produce
the required information to prevent a greater harm, torture should not be justified with necessity
A. Depends on too many assumptions that could never be known with certainty
XVI. DURESS
1.
Treated as an excuse defense important because it is personal only to the person under duress (does
not transfer/extend to others)
2.
Traditional requirements:
A. Threat of immediate/imminent death or great bodily harm
B. To oneself or to another (especially close relatives)
C. That its reasonable to heed or conform to
D. The crime charged against the actor under duress is not murder
3.
MPCs definition, 2.09(1) actor engaged in conduct because he was coerced to do so by use/threat
of unlawful force against him/another, and a person of reasonable firmness in his situation would be
unable to resist
A. Allows duress to apply to cases of murder
B. Doesnt require imminence, doesnt require threat of death/great bodily harm
i.
But factors to consider for whether reasonable person would be unable to resist
C. Situation is the same as for self-defense
i.
No matters of temperament included
4.
Both common law and MPC agree that threat must come from a human being
A. Threats against property are usually not sufficient
5.
Actor cannot raise duress if he was at fault for the situation producing the duress (i.e. joining a
criminal organization)
A. Deals with foreseeability
B. MPC 2.09(2) not available for actors who recklessly place themselves in a position where
its probable that they would be subjected to duress
i.
Same for negligence if crime can be established with negligence
6.
Unlike necessity, no need to show that harm sought to be prevented is greater than harm caused
A. But MPC permits a necessity defense as well as duress if actor does choose the lesser evil
XVII. INTOXICATION
1.
Excuse defense personal to the actor, does not transfer to accomplices (for obvious reasons)
2.
Courts very rarely allow voluntary intoxication as a defense
A. Old common law rule voluntary intoxication can only be a defense to negate specific intent
i.
Some states still follow this
B. Other courts only allow intoxication to negate premeditation/deliberation or other mental
states specifically specified in statutes
3.
Policy since so many crimes are committed by intoxicated perpetrators, dont want to allow most of
them to have a defense because of voluntary intoxication
A. Also, those who get drunk should expect to have diminished capacity recklessness
equation (the act of getting drunk itself is equal to recklessness)
4.
Involuntary intoxication common law allows it as a defense of temporary legal insanity
A. If actor is not sufficiently impaired to meet insanity requirements, then no defense
5.
MPC 2.08 intoxication is not a defense unless it negates an element of the offense
A. (2) Being intoxicated satisfies awareness requirement for recklessness (dont have to prove)
C.

17

B.

(4) Involuntary or pathological intoxication is an affirmative defense if the actor lacks

substantial capacity either to appreciate the criminality of his conduct or to conform conduct
to the requirements of the law
i.
Functions similar to insanity (for temporary involuntary intoxication)
ii.
This includes alcoholics
MPC makes intoxication a potential defense to any crime some states follow this

C.
XVIII. INSANITY
1.
Affirmative excuse defense
2.
Special verdict not guilty by reason of insanity
A. Not the same as an acquittal D is sent to receive treatment
B. Some states have created guilty but mentally ill verdict
3.
Insanity = legal term, means that actors mental state is sufficient to preclude responsibility
A. D must be competent to stand trial
B. In certain situations, government can be forcibly medicated to render them competent
4.
Presumption of sanity burden usually on D to prove insanity
A. Usually needs to be proven by clear and convincing evidence
B. Medical testimony is always presented to show Ds mental state at the time of the crime
5.
MNaghtens Rule D must have a mental defect/disease, the result of which he:
A. Did not know the nature and quality of the acts he was doing, or
B. Did not know what he was doing was wrong
i.
Wrong here means morally wrong, not legally wrong (according to society)
6.
Problems with MNaghten purely cognitive
A. Makes it a yes or no question whether D knew nature/quality or knew wrongfulness it
should be more qualifying, because sometimes the answer isnt so clear
7.
MNaghten is currently the majority view in the U.S.
8.
Other courts have developed a volitional prong insanity if D was unable to conform to the law
A. MNaghten+ replace nature of conduct with volitional prong
9.
Problems with the volitional prong:
A. Hard to distinguish impulses that D could resist from those he couldnt resist
B. If Ds mental disease/deficiency has existed for many years, hard to argue that D was unable
to conform to the law at the particular time he killed somebody (he could have waited longer)
10. Product test or Durham test not guilty if criminal act was the product of actors mental
disease/defect
A. More general than before, could be applied far more often
i.
Gives too much power to psychiatrists testifying
B. Generally rejected
11. Test from U.S. v. Lyons defense only if D was unable to appreciate the wrongfulness of his conduct
A. Hybrid between MNaghten and MPC, but no volitional prong
B. Still a yes or no question in terms of whether D could appreciate/could not appreciate
C. This test was later superseded D unable to appreciate nature/quality OR wrongfulness
i.
This is the current federal law
12. MPC 4.01 not guilty if at the time of conduct as a result of mental disease/defect D lacks
substantial capacity either
A. To appreciate the criminality (wrongfulness) of his conduct, or
B. To conform his conduct to the requirements of law
13. MPC is derived from the MNaghten+ test
A. MPC changes to lack of substantial capacity, which is more qualifying no longer yes or
no in terms of whether D could know whether his acts were wrong
14. MPC leaves it open whether wrongfulness should mean moral or legal
15. MPC 4.01(2) mental disease/defect does not include repeated criminal/anti-social conduct
18

A. Goal is to avoid letting psychopaths avoid conviction because of insanity

XIX. DIMINISHED CAPACITY
1.
Big question should mental health evidence be admissible when it doesnt rise to the level of
insanity?
2.
Two different types failure of proof defense (diminished capacity) and affirmative defense
(diminished responsibility)
3.
Diminished capacity mental impairment establishes the absence of one or more mens rea
requirements for material elements of the crime
A. Many states allow it for specific intent crimes/specific mens rea requirements
i.
This is because specific intent crimes often have a lesser crime included if the specific
intent cannot be proven (dont want diminished capacity to be a complete acquittal)
B. Cant put burden of proof on D its a failure of proof defense
4.
MPC 4.02(1) evidence that D suffered from mental disease/defect admissible whenever relevant to
prove that D did/did not have a state of mind which is an element of the offense
A. Not restricted to certain types of crimes
5.
Diminished responsibility D should not be held as responsible as a mentally healthy person
A. Mitigates the sentence (usually from murder to manslaughter)
B. Extremely disfavored, not used in U.S.
C. MPC rejects this defense

19