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CRIMINAL LAW OUTLINE – SPRING 2002

MAD DOG COFFEE
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I. INTRODUCTION
A. Goals of Criminal Law
1 Culpability – to safeguard conduct that is without fault from condemnation as criminal
2 Proportionality – to differentiate on reasonable grounds between serious and minor offenses
3 Legality – to give fair warning of the nature of the conduct declared to constitute an offense
B. Statutory Interpretation and Common Law
4 Rejects judge made common law crimes
5 Legislature determines crime, judiciary interprets the elements, because:
a) Notice: allow people to steer away from violative conduct
b) High Stakes: penalties generally higher and includes moral condemnation
c) Uniquely Legislative Role: social norms determined by people, who are represented by
legislature
C. Criminal vs. Civil (Tort/Contract) Law
6 Criminal Law: a) Duty usually determined by legislature b) Risk-Creation c) No private
complaint necessary
7 Civil Law: a) Mostly Judge determined b) Compensation, less preventative c) Must show
damage or actual harm d) Victim must bring suit
D. Five Basic Elements and Questions
8 1) Voluntary act (or omission) Actus Reus 2) Social Harm 3) Mens Rea 4) Actual Causation 5)
Proximate Causation 6) Concurrence of the preceding elements
9 Was defendant justified? Should defendant be excused?

II. ACTUS REUS

A. Voluntary Act
10 Model Penal Code § 2.01(1): A person is not guilty of an offense unless his liability is based
on conduct which includes a voluntary act or the omission to perform an act which he is
physically capable.
11 A “voluntary act” is a willed muscular contraction or bodily movement by the actor
a) Slightest muscular contraction or bodily movement constitutes an act
b) An act is “willed” if the bodily movement was controlled by the mind
12 In order to be guilty of an offense, it is sufficient that the person’s conduct included a voluntary
act. It is not necessary that all aspects of his conduct be voluntary.
a) People v. Decina (179) Conduct of getting into car, turning on ignition, and driving was
sufficient for conviction for “driving a vehicle so as to cause the death of a human being,”
although defendant had an epileptic seizure causing him to lose control and hit pedestrian
b) Martin v. State (173) Police arrested drunken man at home and took him to highway; 1)
any person 2) while intoxicated 3) appears in public place and 4) manifests drunken
condiction. HELD: “voluntary” appearance is presupposed in statute, not guilty
B. Involuntary Act
13 Involuntary Acts include reflex actions, seizures, convulsions, and acts that occur while the
person is unconscious or asleep. MPC § 2.01(2)
a) People v. Newton (175) Allegedly shot police officer after being shot in abdomen and
struggling for gun. Physician testimony that shot to abdomen usually results in
unconsciosness. HELD: Unconsciousness is a complete defense, gun shot due to
convulsive jerk
14 Hypnosis/Somnabolism: skeptical on the amount of control or lack of control a person has
under hypnosis or while sleep-walking
a) Cogden v. State (178) Kills daughter while sleepwalking, acquitted because act of killing
daughter was not her act at all. Evidence of prior episodes supported by physician.
15 May not be possible to reach goals of rehabilitation, deterrence, and retribution when acts are
involuntary
C. Innocent Acts and Culpable Thoughts: Why is act necessary?
16 It seeks to assure that the evil intent of the man branded a criminal has been expressed in a
manner signifying harm to society; that there is no longer any substantial likelihood that he will
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be deterred by the threat of sanction; and that there has been an identifiable occurrence so that
multiple prosecution and punishment may be minimized
D. Omissions/Duty
17 Reluctance to impose liability for omissions even where the failure to act is clearly immoral
a) Pope v. State (183) Pope brings child and mother into home. Mother kills child in
religious frenzy. Pope does nothing to stop mother, nor informs the authorities.
ARGUMENT: Pope left child in worse position; assumed duty by bringing in house (good
Samaritan); mother mentally unstable, so responsibility to protect HELD: Since mother is
present the whole time, protecting the child was only a moral obligation. May not be
punished for failure to fulfill a moral obligation, when no legal obligation
(1) Bystander Indifference (Reasons) a) fear of retaliation b) pluralistic ignorance of
individual responsibility c) choice of nightmares, guilt and shame of failing to help vs.
risk of retaliation
(2) Misprision of felony: 18 U.S.C. § 4 - requires active concealment of a known
felony; merely failing to report is not sufficient
b) Generally, a defendant must know the facts from which the duty to act has arisen.
However, he may not avoid criminal responsibility by claiming he was unaware that a
legal duty arose from those facts
18 Possession
a) Mere possession or the failure to terminate possession once the defendant learns of the
item’s presence is sufficient
b) Generally statutes construed to require active or constructive knowledge as to nature of the
item under the control or custody of defendant. Thus, knowingly taking a forbidden item
is a voluntary act.
19 Good Samaritan
a) Typically absent in Anglo-American legal tradition, slowly changing in field of torts, but
not in criminal law - Vermont Good Samaritan Statute (189)
b) Lord Macaulay “Problem of where to draw the line” – (1) Fear that legislation will
substantially diminish freedom, which is significant in a culture steeped in individualism
(2) only where there are already existing legal duties to aid should the failure to aid be
indictable
c) Criminal law has limited resources, pressure to conserve resources for those who
voluntarily and willfully violate the law or other peoples’ rights
20 Exceptions and Pre-Existing Legal Duty
a) MPC § 2.01(3) “unless a penal statute specifically requires a particular action to be
performed, criminal liability for omission arises only when the law of torts or some other
law imposes a duty to act in the circumstances” NOTE: Tort law may imply duty to
mitigate
(1) Jones v. United States (190) Jones is family friend living in house from time to time
w/mother and baby. Capable of feeding baby, but does not. Issue of whether duty to
care for baby existed. Conflicting evidence as to whether paid or not. HELD: Trial
court must instruct that legal duty must be found
(2) Situations for criminal liability: a) statute imposes a duty to care for another b) one
stands in certain status relationship to another c) assumed a contractual relationship to
care for another d) voluntarily assumed to care for another and so secluded the helpless
person as to prevent others from rendering aid. Jones v. United States
b) Duty from Relationship Status
(1) Commonwealth v. Cardwell (193) (although mother scared of retaliation, not
enough when she merely expresses knowledge of child abuse, transfers schools, and
moves clothes to mothers, even though house burned down) HELD: The person charged
with the duty of care is required to take steps that are reasonably calculated to achieve
success.
(2) People v. Beardsley (194) (woman took overdose of morphine at weekend affair in
his home) Court does not impose legal duty, because not wife. No longer good law
(3) Regina v. Stone and Dobinson (194) (sister of mistress locks herself in room and
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doesn’t eat anything, defendant’s unsuccessful in locating original or new doctor, took
no further steps to help or inform) HELD: defendant’s assumed the duty a) blood
relative b) room in house c) attempted to find doctor
(4) People v. Oliver (195) (D invited P to house, gave spoon for heroin, told daughter to
drag outside when he is passed out, dead the next morning) HELD: Duty developed
from a combination of events. D took charge of P by taking him from public place,
where others could have helped, to a private place, where she could have taken care of
him.
c) One who culpably places another in peril has a duty to assist the imperiled person.
(1) Kuntz v. Montana (197) (D stabs boyfriend when he tries to physically abuse her.
He dies when she does not inform police. Would self-defense be sufficient?)
d) Euthenasia vs. Decision not to provide care
(1) Barber v. Superior Court (198) (Patient put on life support, under permission of
family, doctors take patient off of life support. Murder?) HELD: 1) A physician has no
duty to continue treatment, once it has proved to be ineffective. 2) Wife was the proper
person to decide issues regarding further treatment
(2) Airedale NHS Trust v. Bland (199) HELD: 1) it is not lawful for a doctor to
administer a drug to his patient to bring about his death, even though that course is
prompted by a humanitarian desire to end his suffering 2) switching off life support is in
substance not an act but an omission to struggle and the omission is not a breach of duty
by the doctor, because he is not obliged to continue in a hopeless case
(3) NOTE: 1) Without consent of patient or family, doctor still has a contractual legal
duty to support and care for the patient. 2) to say it is an omission alone, does not solve
the question of duty

III. MENS REA

A. Levels of Culpability
21 Puposely: requires the defendant “be aware or hope or believe” an attendant circumstance is
true, and, that he entertain a “conscious object” to achieve the proscribed result or engage in
such conduct. MPC 2.02(2)(a)
22 Knowingly: a person acts knowingly as to an attendant circumstance if she is aware that the
circumstance exists MPC 2.02(2)(b)(i), or if she is aware “of a high probability of its existence,
unless she actually believes that id does not exist.” MPC 2.02(7), and he is practically certain
that his conduct will cause such a result. MPC 2.02(2)(b)
23 Recklessly: a person acts recklessly if he consciously disregards a substantial and unjustifiable
risk that the conduct will cause the social harm of the offense, and this disregard is a gross
deviation from the standard of conduct that a law-abiding person would observe in the actor’s
situation. MPC 2.02(2)(c)
24 Negligently: a person acts in a “criminally negligent” manner if she should be aware of a
substantial and unjustifiable risk of social harm that constitutes a gross deviation from the
standard of care that a reasonable person would observe in the actor’s situation. (Usually only
pertains to negligent homicide) MPC 2.02(2)(d)
25 Transferred Intent: a person “purposely” or “knowingly” causes a result if the result differs
only “in the respect that a different person or … property is injured or affected.” MPC 2.03(2)
B. Common Law Examples
26 Malice does not require ill will, either intentionally or recklessly
a) Regina v. Cunningham (204) (D ripped gas meter out of basement to get money, gas
escapes and injures mother-in-law living in adjoining house, charged with endangering life
of another, requires malicious conduct) TC: “malicious means wicked, and no more”
HELD: Malice requires either 1) an actual intention to do harm done; or 2) recklessness
(i.e. ignored a foreseeable risk) 3) does not require ill will [Question for jury]
27 Concern for blameworthiness, negligence alone is not enough (unless specified)
a) Regina v. Faulkner (206) FACTS: While trying to steal rum, sailor lights match and
accidentally burns down boat HELD: 1) The act done must be in fact intentional and
willful 2) Not willing to accept broad proposition that a person engaged in the commission
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of or in an attempt to commit a felony is criminally responsible for every result that was
occasioned thereby, which was not reasonably foreseen or intended
b) United States v. Neiswender (217) (obstruction of justice, alleged corrupt juror not
identified, truth of D’s representations never established, failed to prove “endeavor” or
specific intent) HELD: 1) D need only have knowledge or notice that success in his fraud
would have likely resulted in an obstruction of justice 2) Rule focusing on foreseeable,
rather than intended, consequences 3) operates in sensible and fair fashion to deter the
conduct sought to be avoided and to punish those whose actions are blameworthy
C. Elements and Material Elements of an Offense
28 Element of an offense means (i) such conduct or (ii) such attendant circumstances or (iii) such
a result of conduct as MPC 1.13(9)
a) is included in the description of the forbidden conduct in the definition of the offense; or
b) establishes the required kind of culpability; or
c) negatives an excuse or justification for such conduct; or
d) negatives a defense under the statute of limitations; or
e) establishes jurisdiction or venue
29 Material element of an offense means an element that does not relate exclusively to the statute
of limitations, jurisdiction, venue or to any to any other matter similarly unconnected with (i)
the harm or evil, incident to conduct, sought to be prevented by the law defining the offense, or
(ii) the existence of a justification or excuse for such conduct MPC 1.13(10)
D. Procedural Issues and Defenses
30 Unless a contrary legislative intent “plainly appears,” a mens rea element applies to every
material element of the offense. MPC 2.02(4)
31 MPC 1.12(1) No person may be convicted of an offense unless each element of such offense is
proved beyond a reasonable doubt. In the absence of such proof, the innocence of the
defendant is assumed.
32 MPC 1.12(2) Section (1) does not (a) require the disproof of an affirmative defense unless and
until there is evidence supporting such defense (b) apply to any defense which the Code
requires the defendant to prove [Therefore, if not affirmative or required, State must prove
mens rea wrt all elements]
33 Contemporaneity: the principle of contemporaniety does not require that the mens rea coincide
with the harm, but with the act that causes the harm.
E. Element Analysis
34 Conditional Purpose: When a particular purpose is an element of an offense, the element is
established although such purpose is conditional, unless the condition negatives the harm or evil
sought to be prevented by the law defining the offense.” MPC 2.02(6)
a) Holloway v. United States (218) ISSUE: Whether carjacking “with intent to cause death or
serious bodily harm” requires an unconditional intent or merely intent to kill if necessary.
HELD: 1) Congress intended to criminalize both (deterrent of national concern, familiar
with cases 2) A defendant may not negate a proscribed intent by requiring the victim to
comply with a condition the defendant has no right to impose
35 Willfull Blindness: When knowledge of the existence of a particular fact is an element of an
offense, such knowledge is established if a person is aware of a high probability of its existence,
unless he actually believes that it does not exist. MPC 2.02(7)
a) United States v. Jewell (220) (Found $110,000 of Marihuana in a secret compartment, and
claims that he did not know there was contraband in the compartment, he only knows that
a compartment exists.) ISSUE: Whether conviction may be upheld when defendant
deliberately avoided positive knowledge of the presence of contraband (material
circumstance element) to avoid responsibility in the event of discovery) HELD: 1) No
prejudice in the charge “government must prove that if D was not actually aware . . . his
ignorance in that regard was solely and entirely a result of . . . a conscious purpose to
avoid learning the truth.” (Ostrich)
36 (Willful Blindness) English precedent “deliberate ignorance and positive knowledge are equally
culpable.” “One knows facts of which he is less than absolutely certain”
a) When lack of knowledge deliberate, then insurer of any existing criminal circumstance
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37 MPC does not support the willful blindness Ostrich instruction, MPC 2.02(7) requires
awareness of a “high probability” of the existence of the fact in question
(1) Not merely a reckless disregard or suspicion followed by failure to further inquire
(2) Knowledge as a matter of subjective belief (Not reasonable man standard)
(3) Some courts require evidence to establish both 1) that the defendant was
subjectively aware of a high probability of illegal conduct, and 2) that the defendant
purposefully contrived to avoid learning of the illegal conduct
38 U.S. v. Giovannetti (House rented to gamblers, no inquiries about intended use) HELD: maybe
careless, but not deliberate effort (ostrich, bury head in sand); requires knowing or strongly
suspecting shady dealing and active steps to avoid knowledge.
(1) Prof. David Luban : a) courier with dope in suitcase, clothing in 2 of 3 (probability?)
Recklessness is substantial and unjustifiable disregard of a known risk, but possession
requires “knowledge.”

IV. IGNORANCE AND MISTAKE

A. Mistake of Fact
39 MPC 2.04(1) Ignorance or mistake as to a matter of fact or law is a defense if: (a) it negatives
the existence of a state of mind that is essential to the commission of an offense; or (b) the law
provides that the state of mind established by such ignorance or mistake constitutes a defense
• Significance of mistake is determined by the mens rea level of culpability.
• When negligence is the culpability level, then may not escape by mistake.
40 Moral-Wrong Doctrine
41 Regina v. Prince (226) (D convicted of a) taking an b) unmarried girl c) under 16 years of age
out of the possession and d) against the will of her father; D claims that he thought she was over
16) ISSUE: Whether statute required mens rea with respect to the age. HELD: 1) The act
forbidden is wrong in itself, if without lawful cause; “taking of a female of such tender years
that she is properly called a girl 2) The legislature has enacted that if anyone does this wrong
act, he does it at the risk of her turning out to be under sixteen [maybe different if he thought he
had consent of father] Strict Liability wrt age. Victorian Age, sexual conduct already risky. Any
additional risk at own peril.
(1) Kahan and Yeager: “courts excuse a mistaken offender when, but only when, the
offender’s mistake negates the inference that he has failed to internalize society’s moral
norms”
(2) NOTE: Concern for judicial lawmaking; Possibly leaving too much discretion to
trial judge
42 White v. State (227) (Statute criminalized abandonment of pregnant women. Husband left
wife, but didn’t know she was pregnant.) HELD: 1) A husband abandoning his wife is guilty of
wrongdoing 2) If he abandons her, he does so at his peril, that she might in fact be pregnant at
the time.
B. Lesser Offense
43 MPC 2.04(2) Although ignorance or mistake would otherwise afford a defense to the offense
charged, the defense is not available if the defendant would be guilty of another offense had the
situation been as he supposed. In such case, however, the ignorance or mistake of the defendant
shall reduce the grade and degree of the offense of which he may be convicted to those of the
offense of which he would be guilty had the situation been as he supposed
a) People v. Olsen (230) ISSUE: Is a reasonable mistake as to the victim’s age a defense to a
charge of lewd or lascivious conduct with a child under the age of 14 years? (D commits
sexual conduct with 13 year old girl, evidence suggests that they had prior sexual
relations) HELD: 1) “A mistake of fact relating only to the gravity of an offense will not
shield a deliberate offender from the full consequences of the wrong actually committed”
3) Public policy to protect children of tender years, need special protection 4) 1203.066
Legislative history suggests it did not intend such a defense, since it would render
legislation a nullity NOTE: “Consent” would not be defense; “gratifying sexual desires of
such person or of such child”
44 Statutory Rape and Mistake: (1) no defense of mistake, when criminality turns on child being
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below age of 10, otherwise affirmative defense. If critical age above 10, then prove by a
preponderance of the evidence that he reasonably believed the child was above the critical age.
MPC 213.6

Mens Rea Level What level of Mistake would be a defense?

Knowingly – requires purpose Any mistake except one that lessens high probability
of occurrence
Recklessly – requires conscious disregard
Negligently
Strict Liability NO MISTAKE

C. Jurisdictional Elements
45 No mistake for jurisdiction or venue elements, having no bearing on the harm that the offense
seeks to prevent or on the existence of a justification or excuse. MPC 1.13(10)
46 Problem when jurisdictional purposes also serves purposes that require it to be a “material”
element (EX: federal drug agents establish federal jurisdiction, but must be protected, so
knowledge not necessary)

V. STRICT LIABILITY
A. Public Welfare Offenses – Characteristics
47 Nature of the Conduct: Involves malum prohibitum, conduct that is wrongful only because it is
prohibited, as distinguished from malum in se, inherently wrongful conduct.
a) Punishment: Penalty is usually minor, such as a monetary fine or a very short jail sentence
b) Degree of social harm: A single violation of a public welfare offense usually threatens the
safety of many persons.
c) No direct or immediate injury to person or property
48 United States v. Dotterweich (236) (Drug manufacturer erroneously labeled drugs on two
occasions, mechanical processing error) HELD: 1) Statute required no mens rea at all with
respect to whether those charged knew or should have known the shipment was mislabeled 2)
Burden on those who have at least the opportunity of informing themselves of the existence of
conditions imposed for the protection of consumers, rather on the innocent public who are
wholly helpless 3) When defendant knows that he is dealing with a dangerous device of a
character that places him “in responsible relation to a public danger.” He should be alerted to
the probability of strict regulation
B. Non-Public Welfare Offenses
49 Statutory Rape: A person is guilty if he has sexual intercourse with an underage female, even if
he had every reason to believe that she was old enough to consent
C. Constitutionality of Strict-Liability Offenses
50 “He who shall do acts shall do them at his peril”
a) United States v. Balint (236) (D claims that proof of knowledge they were selling
prohibited drug is necessary) HELD: 1) The State may in the maintenance of public policy
provide “that he who shall do [acts] shall do them at his peril” 2) Usually found in
regulatory measures, where purpose is social betterment rather than punishment
51 Presumption against strict liability – Federal requirement of “knowingly”
a) Morissette v. United States (237) (D took old and rusty bomb casing from Air Force
practice range, flattened and sold them, D though materials abandoned and not belonging
to anyone, convicted of converting government property, jury not instructed on issue of
intent) HELD: 1) Public welfare offenses generally depend on no mental element 2) In
case of offenses like larceny, that have their roots in the common law, a court will not
assume (absent evidence to the contrary) that the legislature meant to abandon the mens
rea requirement, even if the statute is silent regarding this element FOCUS ON
BLAMEWORTHINESS
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• Could have “claim of right” thinking material is abandoned

• Not an Issue of who’s property it is, whether it is an issue of what his state of
mind was when he took the property.
b) Staple v. United States (241) (D claimed he did not know that rifle he possessed had been
altered to allow automatic firing; Statute provided “it shall be unlawful for any person . . .
to receive or possess a firearm which is not registered to him.) HELD: 1) offenses that
require no mens rea are generally disfavored 2) Avoiding the criminalization of a broad
range of apparently innocent conduct (Many American homes with guns) 3) Absent a clear
statement from Congress that mens rea is not required, we should not apply the public
welfare offense rationale to interpret any statute defining a felony offense as dispensing
with mens rea
c) United States v. X-Citement Video (243) FACTS: Company claims that they do not know
that the person in the video is a minor STATUTE: “The producing of such visual depiction
involves the use of a minor engaging in sexually explicit conduct.” HELD: 1) presumption
in favor of a scienter requirement should apply to each of the statutory elements that
criminalize otherwise innocent conduct 2) reversed the conviction since it was obtained
without proof that the defendant knew the person depicted was a minor
52 Possession (Inherently Dangerous Object)
a) United States v. Freed (242) Possession of a large amount of hand grenades, but claims
that he did not know they were not registered. HELD: Unregistered character of hand
grenade is strictly liable. Very dangerous behavior and one should know that grenades are
regulated.
(1) Staples Distinguished: Freed knew that he was in possession of an inherently
dangerous object (grenade). Whereas, Staples did not know that his gun was a fully-
automatic weapon. Government intended to regulate only certain type of guns, not all
guns. If Staples thought that his gun fell out of the statute, then he should not be
considered as blameworthy.
53 Vicarious Liability – No Prison Sentence
a) State v. Guminga (244) (Lindee’s Restaurant employee sells alcoholic beverage to 17-year
old w/o identification, Minnesota law provides criminal penalties [gross misdemeanor] for
any person selling intoxicating liquor to a minor, and imposes vicarious liability on the
employer for employee’s violation, penalties include possible imprisonment, fine, or
license suspension) HELD: 1) Intrusion on private interests [liberty, damage to reputation,
criminal record for act he did not commit] not justified by the public interest protected 2)
No one can be convicted of a crime punishable by imprisonment for an act he did not
commit, did not have knowledge of, or give expressed or implied consent to the
commission thereof
b) State v. Beaudry (246) vicarious liability imposed when manager remained open past time
and served alcohol, despite instructions of owners. D sole shareholders of small tavern
c) State v. Akers (246) (Statute imposing criminal liability on parents of minor children who
drive off-highway vehicles on public highways) HELD: Any attempt to impose [vicarious
liability] on parents simply because they occupy that status offends due process,
distinguishes from employers [Employer can fire employee, fear of extensions if accepted]
d) State v. Baker (247) Canada moving away from strict liability
D. Model Penal Code 2.05
54 Abolishes strict criminal liability except as to violations, for which imprisonment is never
permitted MPC 2.05
55 Statutes that are silent regarding mens rea, require at least “recklessly” in regard to each actus
reus element of the offense. MPC 2.03(3)

VI. MISTAKE OF LAW

A. General Rule: “Mistake of Law is No Excuse”
56 MPC 2.02(9) Neither knowledge nor reckelessness or negligence as to whether conduct
constitutes an offense or as to the existence, meaning or application or the law determining the
elements of an offense, is such an offense, unless the definition of the offense or the Code so
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provides. [Knowing that what you are doing is illegal is NOT one of the elements that needs to
be proven for liability]
(1) NOTE: No application when the circumstances made material by the definition of
the offense include a legal element (Property of Another)
57 State v. Marrero (255) STATUTE: Prohibits unlicensed possession of a loaded weapon, BUT
expressly exempted “peace officers” defined as “correction officer of any correctional facility
or of any penal correctional institution.” FACTS: D is a guard/officer in a federal corrections
facility. ISSUE: Whether Marrero, as a correction officer in a federal prison, fit within the
definition of peace officer (legal question). [Reliance Defense] HELD: 1) Ignorance of law is
no excuse 2) An infinite number of mistake of law defenses which could be devised from a
good-faith, perhaps reasonable but mistaken interpretation of criminal law, many of which are
concededly complex 3) Exception when official statement of law from court or Attorney
General (maybe)
58 Holmes: We want people to learn the law. To promote education – to deter ignorance – the law
must apply strict-liability principles as to knowledge of the law.
B. Mistakes of Law That Negative the Mens Rea
59 General Rule: A defendant is not guilty of an offense if his mistake of law, whether reasonable
or unreasonable, negates an element of the crime charged MPC 2.04(1)
60 Regina v. Smith (261) FACTS: Tenant rips out cords that he installed into an apartment, walls
damaged ISSUE: Whose property is it? (Question of law) HELD: 1) It is not possible to
exclude the words “belonging to another” 2) no offense if honest belief that the property is his
own
61 Cheeks v. United States (263) FACTS: airline pilot charged with multiple counts of “willfully”
failing to file a federal income tax return, which requires “intentinonal violation of a known
legal duty.” Testified that he believed, inter alia, that his wages were not “income” within the
meaning of the IRS Code provision. HELD: 1) Entitled to instruction that if he genuinely
(albeit unreasonably) believed that wages were not income, then he was not guilty of the
offense charged 2) mistake as to legal meaning of “income” negates the element of
“willfulness,” because he did not intentionally violate a known legal duty
C. Authorized-Reliance Doctrine
62 Not guilty of criminal offense if he acts in reasonable reliance on an official statement of the
law, later determined to be invalid, obtained from a person or public body with responsibility
for the interpretation, administration, or enforcement of the law defining the offense. MPC
2.04(3)(b)
63 People v. Weiss (256): FACTS: D convicted of kidnapping a person suspected of the murder of
Lindbergh child; Police said they should detain anybody that resembles the suspect HELD:
Good-faith belief that they were acting under authority of law would negate an express and
necessary element of the crime of kidnapping
64 United States v. Albertini (268) FACTS: Vietnam peace demonstrator receives a bar letter;
convicted but reversed by Appeals which says it is infringement of 1st Amendment rights; he
then resumes activities; Supreme Court overrules ISSUE: What happens to act done in between
Appeals and Supreme Court decisions (Official Instruction?) HELD: Exception to the mistake
of law doctrine when the mistake results from the defendant’s reasonable reliance upon an
official – but mistaken or later overruled – statement of the law.
(1) NOTE: Must be reasonable mistake or reasonable reliance. If he knows that the
Supreme Court granted certiorari, then he also knows that the outcome is not certain
(maybe lost final judgment status).
D. Note Cases
65 United States v. International Minerals & Chemical (266) STATUTE: “Knowingly violate a
regulation of the ICC regarding the transportation of corrosive liquids” HELD: Regulatory;
sufficient to prove actions it knowingly committed violated those regulations
66 Liparota v. United States (266) Food Stamps (Transfer) Case; Dealing with a huge amount of
people (Staples) dealing in their private life. Will not extend unless Congress specifically says
so.
67 Ratzlaf v. United States (267) Distributing Money in 10 different banks (money laundering)
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Told by banks that he could make payments of $9,999 in 10 banks and escape the tax laws.
STATUTE: Structure Payments HELD: Must show that D knew he was structuring payments
CONGRESS: Changed law to be strict liability
E. Due Process Clause:
68 Lambert v. California (271) STATUTE: Municipal Code unlawful for “any convicted person”
to be or remain in Los Angeles for a period of more than five days without registering HELD:
1) Where a person did not know of the duty to register and where there was no proof of the
probability of such knowledge, he may not be convicted consistently with Due Process.
RATIONALE: 1) Omission, wholly passive 2) No element of willfulness 3) “Severity lies in the
absence of an opportunity either to avoid the consequences of the law or to defend any
prosecution brought under it.
a) MPC 2.01(1) “Not physically capable to avoid”
b) Scope of Holding: Probably Limited unless 3 factors exist
(1) Omission: Unknown offense prohibits an omission (e.g. failure to register)
(2) Status: Duty to act must be based on a status condition rather than an activity (e.g.
presence in L.A.)
(3) Nature of the offense: Offense is malum prohibitum in nature

VII. PROPORTIONALITY

A. MPC 1.02(2)
General concern in criminal law for proportionality in sentencing and punishment
69 Prevention – Deterrence
70 Correction and Rehabilitation
71 Safeguard against excessive, disproportionate or arbitrary punishment
72 Give fair warning of nature of offenses
73 Differentiate among offenders through individualization
74 Define, coordinate, and harmonize powers of courts, agencies, and officers
75 Advance use of scientific methods and knowledge in sentencing
76 Integrate responsibility for administration of correctional system
B. Theories of Proportionality
77 Utilitarian Proportionality: Punishment is proportional if it inflicts no more pain than is
necessary to fulfill its deterrent goal
78 Retributive Proportionality: Punishment should be proportional to the harm caused on the
present occasion, taking into consideration the actor’s degree of culpability for the conduct
79 Recidivist Laws: In most states, a repeat offender is punished more severely for an offense than
a first-time violator. (e.g. three strikes your out) [Utilitarian might favor for deterrence,
whereas a retributivist might reject because person has already paid debt to society for first
crime]
C. Cruel and Unusual Punishment
80 Constitutional Law: The 8th Amendment Cruel and Unusual Punishment Clause prohibits
grossly disproportional punishment.
81 Harmelin v. Michigan (283) FACTS: D convicted of possessing 672 grams of cocaine and
sentenced to a mandatory term of life in prison without possibility of parole. Redividist statute,
final conviction for “no account” check HELD: (1) Will not declare a term of imprisonment
unconstitutional unless its disproportionality is objectively proven, they consider
(1) Inherent gravity of the offense
(2) Intrajurisdictional test: consider the penalties imposed for other offenses in the same
jurisdiction, in order to determine whether penalty is excessive
(3) Interjurisdictional test: compare sentences imposed for the same crime in other
jurisdictions
82 Shaw v. Director of Public Prosecutions (290) FACTS: Do not criminalize prostitution, but
they criminalize solicitation. D publishes Ladies Directory with names, phone numbers,
addresses and telephone numbers of prostitutes with photos ISSUE: Convicted of Conspiracy to
Corrupt Public Morales (Separation of Powers, Fair Notice, Common Law Crime, Selective
 11

Prosecution)

VIII. RAPE

A. Forcible Rape: Definition

83 MPC 213.1(1)(a) A male who has sexual intercourse with a female not his wife is guilty of rape
if he compels her to submit by force or by threat of imminent death, serious bodily injury,
extreme pain or kidnapping. To be inflicted on anyone.
84 Elements: (1) sexual intercourse by a male (2) with a female not his wife (3) by force or by
threat of force (4) against the will (5) and without her consent (6) general-intent mens rea
85 Marital Exemption: Some have abolished for non-cohabitating couples or where violence
present. But other remedies available (i.e. assault, battery, restraining order)
B. Forcible Rape: Actus Reus
86 Force or threat of force
a) Resistance Rule: (Maryland) “Force is an essential element of the crime [of rape] and to
justify a conviction the evidence must warrant a conclusion either that the victim resisted
and her resistance was overcome by force or that she was prevented from resisting by
threats to her safety” (EX: Push from behind on bed, lack of resistance. 1) Prosecutor:
Lack of resistance is because of fear)
(1) Many legislatures have decided to read out the requirement of force or threat,
(Louisiana requires utmost resistance. But most statutes, where formally stated, require
only reasonable resistance)
(2) 50 years ago resistance always required, recently liberalized
(3) Criticism: The resistance requirement may force the female to escalate the dangers
to herself. Moreover, it assumes that verbal resistance – saying no – is not enough.
87 Against the will (usually subsumed within other elements)
88 Lack of Consent
a) Modern Trend: Phasing out force requirement, thus focusing on issue of consent
(1) Permission Required: State in the Interest of M.T.S. (339) FACTS: 14-year old and
17-year old with history of kissing and petting, have sexual intercourse without express
consent HELD: (1) A female’s subjective consent is insufficient, it is rape unless she
gives permission for intercourse (2) Permission for kissing and heavy petting but not
intercourse, lying in bed and not saying no is still not consent
• Concern: Over-criminalization – Social Norms
(2) Statutes:
• (California) “Positive cooperation in act or attitude” [May argue passivity]
• (Wisconsin) “Words or overt actions” [Her saying “yes” may be enough for
consent]
C. Forcible Rape: Mens Rea
89 General Intent Offense: Most jurisdictions provide that a person is not guilty of rape if, at the
time of intercourse, he entertained a genuine and reasonable belief that the female was
voluntarily consenting
D. Rape by Nonforcible Means
90 Statutory Rape: Intercourse by a male with an underage female constitutes rape. Neither force
nor the underage female’s lack of consent is an element of the offense.
a) Too young to validly consent
b) No mistake of fact-regarding-age – Strict Liability Offense
91 Fraud in the Inducement: A seducer is not a rapist. A man is not guilty of rape if he fraudulently
induces the female to consent to intercourse with him
a) Painter and Sob Story
b) Falsely claiming sex is cure to serious illness
92 Fraud in the Factum: Consent to engage in sexual intercourse is invalid if, as the result of fraud,
the victim is unaware that she has consented to an act of sexual intercourse
a) V agrees to permit surgeon to “insert and instrument” into her vagina while she is under
anesthesia, it turns out to be his penis. D is guilty of rape
 12

b) Twin Brother example

93 State v. Rusk (323) FACTS: “If I do what you want, will you let me go without killing me?”
(perceives threat of force, may be unreasonable) “He lightly chocked me.” ISSUE: Whether a
real but unreasonable fear of imminent death or serious bodily harm would suffice. HELD: 1)
The reasonableness of Pat’s apprehension of fear was plainly a question of fact for the jury to
determine 2) Jury obviously disbelieved Rusk’s testimony, conviction should stand
a) Appeals Court: 1) No resistance (usually good evidence that threat or force existed, but not
formal element) 2) Reasonable fear must be sufficiently reasonably grounded in evidence
94 State v. Thompson (333) FACTS: High school principal forced one of his students to submit to
sexual intercourse by threatening to prevent her from graduating STATUTE: (1) Without
consent = the victim is compelled to submit by force or by threat of imminent death, bodily
injury, or kidnapping to be inflicted on anyone (2) Regretfully DISMISSED, no force

95 HYPO: I will place snake on you if you don’t have sex with me? (She has morbid terror of
snakes)
a) MPC 213.1 “Force or by threat of imminent death, serious bodily injury, extreme pain or
kidnapping” If you do not us force, then it must be an extreme threat.”
b) MPC 213.1(2) [Gross Sexual Imposition] “Any threat that would prevent resistance by a
woman of ordinary resolution”
c) Ignores special case when the offender knows of the victims special circumstances, or if
the offender does not know of the persons special sensitivity
d) When fear is unreasonable, it may allow defendant to escape conviction. If her fear is
unexpectedly severe, it might impose more liability on defendant.
e) Statute probably does not mean to allow subjective quirks to contribute to the level of
threat. Fear standard is an objective reasonable person standard.
f) MPC 213.1(2)(b) “Mental disease or defect” applies to insanity, does not apply to special
fear
g) Even if mental fear or weakness is called a disease, does it render the person incapable of
appraising the nature of her conduct

IX. HOMICIDE
Common Law Principles
A. Definition of “Human Being”
96 At the start of life: A fetus is not a human being until it is born alive
a) Keeler v. Superior Court (1970) FACTS: Ex-husband kicks pregnant ex-wife in stomach,
kills the 35 week fetus HELD: 1) Legislature in 1850 intended that term to mean a person
who had been born alive, and did not intend the act of feticide 2) Not criminal homicide to
cause a fetus to be stillborn
97 At the end of life: A person is legally dead when there is a total stoppage of the circulation of
the blood and a permanent cessation of the functions of respiration and heart pulsation.
a) Problem of life-sustaining technology, modern exception for “brain death syndrome”
B. Common Law Definition of “Murder”
98 “Aforethought”: Originally meant that actor though about killing beforehand, i.e. premeditation.
Over time it lost its importance, and only means that the “malicious” mental state must occur
before or at the time of the homicide, rather than after the killing.
99 “Malice”: Acts unjustifiably, inexcusably, and in the absence of any mitigating circumstance,
kills a person with any of following mental states: (a) intention to kill a human being; (b)
intention to inflict grevious bodily injury on another; (c) extremely reckless disregard for
human life (“depraved heart”); (d) intention to commit a felony during which death accidentally
occurs
C. Provocation and Cooling Time
100 Provocation defense if act committed under influence of passion or in the heat of blood
(reasonable person determined by jury)
a) Commonwealth v. Carroll (396) FACTS: Wife insulting husband, he shoots HELD: 1)
showing of a particular length of time prior to the actual killing is not necessary 2) when
 13

not an insanity defense, a psychiatrist’s opinion of a defendant’s impulse or lack of intent

or state of mind carries little weight　
b) State v. Guthrie (400) FACTS: D stabbed a co-worker with a knife after being teased and
flipped by a towel in the nose. HELD: There must be some period b/w the formation of the
intent to kill and the actual killing (i.e. there must be an opportunity for some reflection on
the intention to kill after it is formed, instantaneous and momentary deliberation is not
sufficient.)
c) State v. Anderson (403) FACTS: D rapes and murders 10-year old daughter of the woman
the defendant was living with HELD: No rational calculation 1) 60 wounds look like
explosion of violence 2) committed in own house with bloodstained clothes everywhere 3)
no real motive from prior relationship. However, this looks like one of the most heinous
of crimes.
(1) Anderson leads to doubt whether an impassioned decision to kill is necessarily less
culpable than a dispassionate one. As in Anderson, an unplanned killing may present a
more culpable offense than a reflective killing by a brooding, self-doubting, self-
reflective offender
101 Cooling-time: If reasonable time has elapsed for the blood to cool, then provocation usually
rendered inadequate
102 Criticism: (a) A reasonable person does not kill even when provoked (b) Provocation defense
dominated by men (c) Victim’s immoral conduct in no way jeaprodizes the life of defendant or
anyone else
D. Model Penal Code § 210
103 MPC 210.3: No longer need a provoking incident. Reduction to manslaughter. “Committed
under the influence of extreme mental or emotional disturbance” – “the reasonableness of such
is determined from the viewpoint of a person in the actor’s situation under the circumstances as
he believes them to be.”
a) Girouard v. State (405) FACTS: Wife provokes w/verbal insults and threats of prosecution
for abuse. Husband stabs with knife 19 times. HELD: 1) For provocation to be adequate,
it must be calculated to inflame the passion of a reasonable man and tend to cause him to
act for the moment from passion rather than reason 2) Words alone are not adequate
(Rejected by MPC)
b) Maher v. People (407) FACTS: D heard wife and victim committed adulterous activity,
followed to saloon and shot victim (assault w/intent to murder) HELD: 1) Indulgence to
the frailty of human nature, then lesser offence when a) committed under the influence of
passion or in heat of blood b) before a reasonable time has elapsed for the blood to cool 2)
Determined by jury
104 MPC 210.3(b) “extreme emotional disturbance” (Affirmative defense reduction to
manslaughter)
a) The particular defendant must have “acted under the influence of extreme emotional
disturbance” (subjective)
b) There must have been “a reasonable explanation or excuse” for such extreme emotional
disturbance, “the reasonableness of which is to be determined from the viewpoint of a
person in the defendant’s situation under the circumstances as the defendant believed them
to be” (objective)
c) Apparently discards the common law rule “that words alone, no matter how insulting,
could not amount to adequate provocation”
105 People v. Casassa (415) FACTS: After casually dating, victim informed defendant she was not
“falling in love” with him. He broke in apartment to eavesdrop and waited in her room to kill
her. ISSUE: Whether “extreme emotional disturbance” is an objective or subjective standard.
HELD: 1) Excuse offered by defendant was so peculiar to him that it was unworthy of
mitigation 2) Two parts, one subjective the other objective (see above)
106 D.P.P. v. Camplin (423) 15-year-old boy who killed an older man in response to sexual abuse
and taunting. TC: Reasonable man, not reasonable boy standard HELD: Reversed; “standard
should be individualized by requiring the jury to consider whether the provocation would have
been sufficient to cause a reasonable person of the defendant’s age to lose his self control.”
 14

DISTINCTION: In deciding how much you are provoked, may consider individual
characteristics (subjective). Rather, self-control is to be weighed on a reasonable person
standard regardless of characteristics (objective).
107 Should a judge be required to instruct the jury based on a subjective standard? “Judges should
not be required to describe the objective element in the provocation defense by reference to a
reasonable man, with or without attribution of personal characteristics. They should explain
that to find provocation the jury must think that the circumstances were such as to make the loss
of self-control sufficiently excusable to reduce the gravity of the offence from murder to
manslaughter.”
E. Depraved Indifference and Reckless Killings
108 Recklessly: Substantial and Unjustifiable Risk
a) Commonwealth v. Welansky (425) FACTS: Night club run by D, emergency exists
blocked or locked, accidental fire, unable to escape, several die (Involuntary
Manslaughter) HELD: 1) Reckless conduct is intentional conduct, by way either of
commission or of omission where there is a duty to act, which conduct involves a high
degree of likelihood that substantial harm will result to another. 2) Fire in a place of public
resort is an ever present danger. enough to prove that death resulted from his wanton or
reckless disregard of the safety
b) Parrish v. State (430) FACTS: Man pursued ex-wife with bayonet; while trying to escape
she died in a car collision HELD: Second degree murder for having killed the deceased by
an act “imminently dangerous to another, and evidencing a depraved mind regardless of
human life
(1) QUESTION: What happens if deceased survived but the driver of the car she struck
had been killed? May the state prosecute the woman?
(2) MPC §2.02(2)(c), a person acts recklessly wrt the death of another when he
consciously disregards a “substantial and unjustifiable risk” that his conduct will cause
that result. 1) Very arguable that woman’s conduct is justifiable because she is running
for her life. 2) No justification for ex-husband to chase woman w/bayonet
109 Criminal Negligence
a) State v. Williams (431) FACTS: Crime of manslaughter for negligently failing to supply
their 17-month child with necessary medical attention. D aware that child is sick, but not
aware of the risk of death. Fear that if reported to doctor, then child services would take
him away HELD: 1) the caution exercisable by a man of reasonable prudence under the
same or similar conditions, defendants were sufficiently put on notice concerning the
symptoms of the baby’s illness and lack of improvement in the baby’s apparent condition
to have required them to have obtained medical care for the child. 2) The failure so to do
in this case is ordinary or simple negligence, and such negligence is sufficient to support a
conviction of statutory manslaughter.
(1) NOTE: Washington no longer imposes manslaughter liability in cases involving
ordinary negligence
b) Focus not on whether you knew or should have known facts, but rather focus on inability
to conform to the legal standard. MPC 2.02(2)(d) Negligently – “gross deviation from the
standard of care that a reasonable person would observe in the actor’s situation”
(1) NOTE: “The heredity, intelligence, or temperament of the actor would not be held
material in judging negligence, and could not be without depriving the criterion of all its
objectivity.”
110 Depraved or Extreme Indifference to Human Life
a) Commonwealth v. Malone (439) FACTS: Two boys playing “Russian Poker,” D loaded 4
shots away and the gun discharges on the third shot. HELD: 1) Act intentionally done by
the latter, in reckless and wanton disregard of the consequences which were at least sixty
percent certain from his thrice attempted discharge of a gun known to contain one bullet
and aimed at a vital part of Long’s body 2) “depraved heart”
(1) MPC 210.2 Murder when act is committed recklessly under circumstances
manifesting “extreme indifference to the value of human life.”
b) United States v. Fleming (443) FACTS: Drunk person driving on the wrong side of the
 15

road HELD: 1) Driving abilities were so impaired that he recklessly put others in danger
simply by being on the road and attempting to do the things that any driver would do.

X. FELONY MURDER
A. General Rule
111 At common law, a person is guilty of murder if she kills another person, even accidentally,
during the commission or attempted commission of any felony.
112 Statutory Approach: In states that divide murder into degrees, a homicide that occurs during the
commission of a specifically enumerated offense (commonly: arson, robbery, rage, and
burglary) constitutes first-degree murder. All other felony-murders are of the second degree.
a) HYPO: While committing auto theft, accidentally kill a pedestrian when driving 5 miles
over the speed limit.
(1) New York Penal Code: Probably not murder. Criminally negligent homicide would
require a “gross departure” from the norm; five miles over would probably not fit.
(2) California: “all other kinds of murder are of the second degree” Predicate felonies of
rape, burglary, kidnapping, etc. for first degree, but others would fall under lesser-
included offense. Whether the conduct is inherently dangerous to human life. (Low
probability that auto theft will result in death)
(3) HYPO: Driving away from a burglary and hit and kill a pedestrian. New York:
“immediate flight therefrom” Affirmative defense for the passenger/accomplice a) not
direct cause b) no dangerous instrument c) no reasonable belief of dangerous instrument
d) no reasonable belief that death is likely to result
113 MPC 210.2: “Recklessness and indifference are presumed if the actor is engaged or is an
accomplice in the commission of, or an attempt to commit, or in flight after committing or
attempting to commit robbery, rape or deviate sexual intercourse through force or threat of
force, arson, burglary, kidnapping or felonious escape.”
a) Not a Conclusive Presumption: MPC 1.12(5) gives felony-murder question to jury (i.e.
Defense council may be able to rebut or negative the presumed fact, which must be proved
beyond a reasonable doubt)
114 Unlawful-Act Doctrine
a) Balckstone: Involuntary manslaughter is a killing “in the commission of an unlawful act,
not amounting to a felony; or in the commission of a lawful act which might produce
death, in an unlawful manner, or without due causation and circumspection.”
b) State v. Powell (456) Jogger killed by Rottweiler dogs that escaped from defendant’s
fenced yard. Local ordinance required dogs to be restrained by a secure fence or leash at
all times. HELD: ordinance was a “safety” ordinance, designed to protect persons as well
as property, and therefore that the defendant was guilty of involuntary manslaughter under
the unlawful-act doctrine.
B. Criticism
115 Intent to Kill (Over-Inclusive): 1) In almost all cases in which felony-murder is applied it
erodes the relation between criminal liability and moral culpability, because it 2) has the effect
of relieving the jury of the necessity of finding one of the elements of the crime of murder to
wit, malice aforethought (i.e. intent to kill).
116 Disproportionate Punishment: Sometimes conviction based on “foreseeability,” which sounds
like negligence, and little about the culpability of the defendant
117 Merger Doctrine (Under-Inclusive): The merger doctrine probably protects the most heinous of
crimes. The ones that can become first-degree through the felony murder rule are negligent
killings, when a direct individual attack may be merged.
(1) Left only with intermediate case. Irony that smaller acts are excluded by inherently
dangerous limitation and larger acts are excluded by the merger doctrine.
C. Limitations on Felony Murder
118 Inherently Dangerous Conduct:
a) Alternative Approaches 1) Some courts consider felony in the abstract 2) Others consider
in the light of the circumstances surrounding the particular case
(1) Only if dangerous when viewed in the abstract: 1) Look at the definition of the
 16

crime, in order to determine whether the offense carries “a high probability” of the loss
of life, or 2) creates a “substantial risk” that someone will die
• If you just look at the individual facts, then allowing the jury to convict under
any circumstances, because they may look backward and say that there must
have been something dangerous in conduct if it resulted in death.
(2) In the light of the circumstances surrounding the particular case:
• People v. Stewart (464) [Rejecting California Approach] FACTS: Mother of
infant on crack binge did not feed or care for infant, which died from
dehydration. HELD: 1) Determine if a felony is inherently dangerous by
viewing particular case in the manner and the circumstances in which it was
committed.
b) People v. Satchell (462) HELD: 1) felony possession of a concealable weapon by an ex-
felon was not a “felony inherently dangerous to human life.”
c) People v. Henderson (463) HELD: 1) Unlawful restraint of another does not necessarily
involve the requisite danger to human life for a felony-murder conviction and that the
statutory factors elevating the offense to a felony – violence, menace, fraud, or deceit - do
not all involve conduct that is life endangering
119 Independent Purpose - Merger doctrine: Felony-murder rule is cancelled when 1) the conduct
is part of the lesser included offenses enumerated in the statute, or 2) when the actor does not
have an independent purpose from the prohibited act
a) People v. Smith (466) FACTS: Defendant became angry with child and beat the child, who
died of a severe head injury sustained during the abusive behavior. HELD: 1) Felony-
murder instruction may not properly be given when it is based upon a felony, which is an
integral of the homicide and which the evidence produced by the prosecution shows to be
an offense included in fact within the offense charged. 2) Bars application “where the
purpose of the conduct was the very assault which resulted in death.”
b) People v. Wilson (467) FACTS: defendant forcibly entered his estranged wife’s apartment
carrying a shotgun, and shot and killed wife and man in the living room. Jury instructed
on felony-murder because he entered dwelling with criminal intent to commit a felony (i.e.
assault with a deadly weapon) HELD: 1) must have an independent purpose, before
allowing felony-murder (e.g. if he entered to steal and then killed)
(1) HYPO: Intent to commit robbery, with intent to use force. Robbery not going to
merge, because sufficiently independent of a separate property and assault motive.
c) People v. Hansen (470) FACTS: Drive buy shooting kills a 13-year old HELD: 1)
Legislature makes it a felony to discharge a firearm at an inhabited building 2) All
inherently dangerous felonies serve as a predicate for felony POLICY: The purpose of the
second degree felony-murder doctrine – namely the deterrence of negligent or accidental
killings that occur in the course of the commission of dangerous felonies (become a kind
of insurer for inherently dangerous activities, in which the legislature has given fair notice)
Transferred intent is a legal fiction, so easier to go on real policy arguments based on
felon-murder.
120 Killings Not “in Furtherance” of the Felony: In most jurisdictions, the felony-murder rule does
not apply if the person who commits the homicide is a nonfelon resisting the felony
a) State v. Canola (471) FACTS: While in the process of robbing a store, a victim of the
robbery shot one of the co-felons. HELD: 1) In order to convict for felony-murder, the
killing must have been done by the defendant or by an accomplice or confederate or by
one acting in furtherance of the felonious undertaking 2) Gradations of criminal liability
should accord with the degree of moral culpability for the actor’s conduct (Shooting the
co-felon is a justifiable homicide, so how can a justifiable act support murder)
b) United States v. Heinlein (476) FACTS: Three defendants participated in rape. One
defendant stabbed and killed victim after being slapped. HELD: 1) Under agency theory,
unanticipated actions of a felon not in furtherance of the common purpose could no more
be attributable to other felons than the actions of a policeman or victim could be attributed
to them.
(1) EXCEPTION: “Shield” Cases – “Furtherance” doctrine is inapplicable where
 17

defendants forced deceased to occupy a place of danger in order that they might carry
out the crime. It is said to reflect “express malice,” justifying a murder conviction.
(Depraved indifference to human life)
121 Who does the Killing?
a) Justifiable Homicide – No felony-murder liability when a co-felon is killed by a
policeman in the performance of his duty, because it is lawful conduct on the part of the
policeman.
b) Agency Theory: the identity of the actual killer becomes a central issue; only if the act of
killing is done by a co-felon or someone acting in concert with a co-felon will the felony-
murder rule be applicable
c) Proximate-Cause Theory: Central issue is whether the killing, no matter by whose hand,
is within the foreseeable risk of the commission of the felony
(1) New York: A person is guilty of murder if, “in the course of and in furtherance of
designated felonies, he, or another participant causes the death of a person other than
one of the participants. (Proximate Cause)
(2) Wisconsin: Felony-murder liability upon any person who “causes the death of
another human being while committing or attempting to commit designated felonies.”
(Broadest)
(3) New Jersey: A person is guilty of murder if, “in the course of and in furtherance of
the crime, any person causes the death of any person other than one of the participants.”
Affirmative defense for felons who can show that they had no reason to anticipate the
use of deadly force. Exception when the victim is a co-felon.
d) Taylor v. Superior Court (477) FACTS: Liquor Store robbery with three confederates.
Taylor is the get-away driver. The other two, Smith and Daniels, point gun at the
storeowner and threat to kill him, while demanding the money. The Owners wife shoots
Smith, who dies. HELD: 1) Under the felony murder doctrine Taylor could not be held
liable, because the killing was committed by the victim against one of the co-felons 2)
However, an accomplice to the robbery, is vicariously liable for any killing attributable to
the intentional acts of his associates committed with conscious disregard for life, and
likely to result in death 3) Central issue is whether the conduct of the accomplice was
sufficiently provocative of lethal resistance to support a finding of implied malice – Yes,
brandishing of gun and repeated threats of execution
e) People v. Antick (482) FACTS: After burglary, driver found by the police. While being
searched, driver pulled out a gun, but was killed by the officers in response. Accomplice
later discovered and charged with murder. HELD: 1) No felony-murder 2) Under theory
of vicarious liability, it is necessary to prove that co-felon caused the death of another
human being and that he acted with malice. Drivers conduct resulted in his own death, so
no vicarious liability.
(1) DISTINGUISHED from Taylor:
• Police officers in course of duties
• Antick no longer present, ended joint venture
• Provocation in Taylor came from two individuals, not just the one shot
(Daniels engaged in conduct that caused the death of Smith)]

122 NOTE: We do not always need felony murder. Usually legislatures do not care about deaths of
co-felons. MPC treats felony-murder as a presumed form of liability, but let the jury decide
that it is not. Jury decides depraved indifference or recklessness.

XI. CAUSATION
A. Actual “But For” Cause
123 MPC 2.03(1)(a): Conduct is the cause of a result when it is an antecedent “but for” which the
result in question would not have occurred
124 Steps in determining “Actual Cause”
a) What are the relevant voluntary acts or omissions committed by D?
b) But for D’s voluntary acts, would the social harm have occurred when it did?
 18

(1) If “Yes,” not liable for murder, but possibly attempt

(2) If “No,” move to proximate cause
125 Substantial Factor Test: Occurs when there are concurrent sufficient causes of death, and
application of “but for” test would show that neither D1 or D2 “caused” V’s death. Question is:
“Was D’s conduct a substantial factor in the resulting harm?”
a) People v. Arzon (521) FACTS: Allegedly set fire to couch on 5th floor of abandoned
building. Firemen die in smoke from independent fire on the 2nd floor, not connected
with defendant. HELD: 1) The defendant’s conduct need not be the sole and exclusive
factor in the victim’s death 2) an individual is criminally liable if his conduct was a
sufficiently direct cause of the death, and the ultimate harm is something which should
have been foreseen as being reasonably related to his acts 3) Foreseeable that firemen
would be exposed to life-threatening danger. Fire set by defendant is an indispensable link
in the chain of events that resulted in the death
B. Proximate Cause
126 MPC 2.03(1)(b): Conduct is the cause of a result when the relationship between the conduct
and result satisfies any additional causal requirement imposed by the Code or by law defining
the offense
127 Relationship of “PC” and “AC”: Actual cause analysis determines who the potential candidates
are for causal responsibility for a result. The purpose of proximate causation is to determine
who among the candidates ought to be held causally accountable for the harm.
a) People v. Acosta (517) FACTS: Defendant stole a car, used egregious driving tactics in
escape. Two helicopters in pursuit crash, and occupants die as a result. Pilots violated
regulations through reckless operation. HELD: 1) [Standard] Exclude extraordinary
results, and allow the trier of fact to determine the issue on the particular facts of the case
using the common sense of the common man as to common things 2) But for fleeing
police, helicopters would not be in position to crash 3) Given emotional dynamics of any
police pursuit, there is a “appreciable probability” that one of the pursuers, in the heat of
the chase, may act negligently and recklessly PROXIMATE CAUSE SHOWN 4) NO
MALICE; not shown that Acosta consciously disregarded the risk to the helicopter pilots
“barely objectively cognizable”
(1) NOTE: no contributory negligence in criminal law. Basic focus is risk-creation. We
do not care that someone else also created a risk, when your conduct alone created a
risk of death.
128 Criticism: Proximate cause is damaging integrity of criminal jurisprudence. The concept of
foreseeability is inherently arbitrary and manipulable, because there are many equally accurate
ways to describe any particular harm-causing event depending on the level of generality.
129 NOTE: The key concept in proximate cause analysis is probability – probability as it would be
understood by ordinary persons antecedent to the event, with no special access to information
about the facts of the event
C. Direct Causes
130 Did any actual cause of the result come into play after D’s voluntary act? If none, the D’s act is
the direct cause, which is also the proximate cause of the social harm. Because there is no other
candidate for causal responsibility.
a) Example: D shoots V. V dies instantly. (No other but for causal force = direct cause) If D
possessed the requisite mens rea, and absent any defense, he may be convicted of some
form of criminal homicide
b) People v. Warner-Lambert (523) FACTS: Explosion at a chewing-gum factory, killing
several employees. Corporation earlier warned of two potentially explosive substances in
manufacturing, magnesium state and liquid nitrogen. No hard proof of what triggered the
explosion. HELD: 1) Defendant’s actions must be a sufficiently direct cause of the
ensuing death before there can be any imposition of criminal liability, and this standard is
greater than that required in tort liability. 2) must show triggering cause of the explosion,
will not expand application of proximate cause
D. Intervening Causes
131 An “intervening cause” is an actual cause of social harm that arises after D’s causal
 19

contribution to the result. However, an intervening cause does not necessarily relieve a
defendant of causal responsibility, under Common Law.
132 Foreseeable intervening cause does not break the causal connection
a) People v. Kibbe (522) FACTS: Defendants abandoned there helpless intoxicated robbery
victim on the side of the road in subfreezing temperature, a half-mile from the nearest
structure, with no shoes and no eyeglasses, and clothing removed. Victim killed by
passing truck. HELD: 1) Ultimate harm of truck, is something which should have been
foreseen as being reasonably related to the acts of the accused 2) Defendants acts of
placing him in position of danger next to the highway, set the wheels in motion [He would
have died anyway in the cold]
(1) High level of culpability in conduct of robbery
133 Unforseeable intervening cause breaks the causal connection
134 MPC 2.03(2)(b), 2.03(3)(b): Prosecution must prove “the actual result involves that same kind
of injury or harm as that designed or contemplated and is not too remote or accidental in its
occurrence”
a) The MPC does not talk about proximate cause language. The question is whether the result
is too accidental to have bearing on the D’s culpability. (Coffee: MPC downplays the
proximate cause standard, but still allows some room for relation b/w cause and result)
b) HYPO: Person goes up to the roof because of a fire in the building. A sniper independently
shoots the person.
(1) 2.03(1)(a): Satisfied for but for causation
(2) Too remote/accidental: Separate volitional act, which serves as an intervening and
superceding act that breaks the chain of causation
E. Subsequent Human Actions Intended to Produce the Result
135 Free, deliberate, and informed human intervention
a) In general, a defendant is not the proximate cause of a result if a free, deliberate, and
informed act of another human being intervenes.
b) Retributive Theory: “Free Will” is a critical factor in the determination of moral
responsibility for social harm. When a person acts of his own free will, he should accept
full responsibility for the results of his actions.
136 People v. Campbell (530) FACTS: Person depressed or upset because he slept with Campbell’s
wife. Campbell said he should stop talking about killing himself and actually do it. He left him
his revolver, exited the room, and moments later Basnaw kills himself. Court: D had no
present intention to kill. He provided the weapon and departed. Defendant hoped Basnaw
whould kill himself but hope alone is not the degree of intention requisite to a charge of murder.
137 People v. Kevorkian (531) FACTS: Dr. Kevorkian allegedly assisted in the suicide of Ms.
Miller and Ms. Wantz, one with a suicide machine of lethal injection HELD: 1) Only where
there is probable cause to believe that death was the direct and natural result to a defendant’s act
can the defendant be properly bound over a charge of murder. 2) In assited suicide it depends
on his degree of participation 3) Informed volitional decision involving free will, usually
breaks the chain of causation
a) Current Law – One who successfully urges or assists another to commit suicide is not
guilty of murder, at least so long as the deceased was mentally responsible and was not
forced, deceived, or otherwise subject to pressures that rendered his action partly
involuntary.
b) MPC 210.5(1) permits convicting a person of criminal homicide for causing another to
take his life, but “only if he purposely causes such suicide by force, duress or deception.”
c) NY 125.15 manslaughter when a person “intentionally causes or aids another person to
commit suicide”; regardless of deception or duress
138 Supreme Court Assisted Suicide
a) Washington v. Glucksburg (535) 521 U.S. 702 [1992] Supreme Court held that
individuals who wish to commit suicide have no constitutional right to obtain assistance in
doing so.
139 Exception for Reckless Aid of Suicide
a) One who intentionally provides another person with the means to commit suicide cannot
 20

be convicted of murder, but one who recklessly or negligently makes such means available
to a person who is “intoxicated and despondent or agitated” can sometimes be convicted of
a lesser degree of homicide, such as involuntary manslaughter.
(1) RATIONALE: 1) The drunk or despondent person is no longer legally or mentally
responsible because of their condition 2) the person providing the means can be said to
have “consciously disregarded a substantial and unjustifiable risk” that his actions
would result in death
140 Suicide by victim as a result of criminal activity
a) Stephenson v. State (537) FACTS: Victim abducted and allegedly attempted rape and
assault. Victim ingests poison, which she purchased at a drug store in the presence of one
of her abductors. Victim dies. HELD: 1) If a defendant engaged in the commission of a
felony such as rape or attempted rape, and inflicts upon his victim both physical and
mental injuries, the natural and probable result of which would render the deceased
mentally irresponsible and suicide followed, he would be guilty of murder 2) Deceased
was always under the custody and absolute control of D, she knew not when she would be
subject to further rape
(1) HYPO: Hillary tells Clinton that she will commit suicide if he leaves her. And she
has a long history of suicide attempts. Is there a causal connection, when it is obviously
foreseeable? There is nothing inherently criminal in act of leaving wife.
F. Subsequent Human Actions that Recklessly Risk the Result: Split
141 Proximate Cause is too harsh
a) Commonwealth v. Root (545) FACTS: Drag race. One of the competitors tries to pass in
the opposite lane, but he is flattened by an oncoming truck. HELD: 1) The legal theory
which makes guilt or innocence of criminal homicide depend upon such accidental and
fortuitous circumstances . . . is too harsh to be just 2) The deceased recklessly chose to
swerve his car to the left and into the path of an oncoming truck, thereby bringing about
the head-on collision which caused his own death 3) D’s reckless conduct was not a
sufficiently direct cause
142 Proximate Cause is appropriate
a) State v. McFadden (548) FACTS: Drag race. Participant, Sulgrove, lost control and struck
automobile coming in opposite direction and kills 6-year old girl in the other car. Sulgrove
also dies. D charged w/two counts of involuntary manslaughter. HELD: 1) We are
unwilling to hold as a blanket rule of law that instructions used in civil trials regarding
proximate cause are inappropriate for criminal trials 2) Vicarious liability is sufficient to
convict for death of Faith Ellis, but not for Sulgrove because it requires that the perpetrator
cause the death of “another person” (Joint participation in a public offense)
b) Commonwealth v. Atencio (550) FACTS: Three guys play Russian Roulette while
drinking, each plays, the first two miss, third one hits. HELD: 1) In civil law a voluntary
act on part of decedent would be a bar to liability, but in criminal law there is no absolute
bar 2) Drag racing is a problem of skill or lack of it. With Russian Roulette it is a matter
of luck as the location of the bullet, and except for a misfire the outcome is a certainty if
the chamber happens to be the one containing the bullet. (Inherent in the rules of the game
that you cannot give up or declare the winner, w/o making a lethal mistake)

XII. ATTEMPT
A. General Principles
143 Definition: In general, an attempt occurs when a person, with the intent to commit a criminal
offense, engages in conduct that constitutes a substantial step toward the commission of the
target (i.e. intended) offense
144 Grading the Offense
a) Common Law: A criminal attempt was a common law misdemeanor, regardless of the
seriousness of the target offense.
b) Modern Statutes: Today, an attempt to commit a felony is a felony, and punishment is
dropped down one degree lower than the target offense.
c) MPC 5.05(1): With exception of felonies of the first degree, the MPC treats the offenses
 21

of attempt, solicitation, and conspiracy as offenses of the same degree – thus, subject to the
same punishment – as the target offense.
145 Merger Doctrine: A criminal attempt merges into the target offense if it is successfully
completed.
146 Assault: A criminal assault is an attempt offense in disguise, but with different rules. To be
guilty of assault, a person must engage in conduct that is in closer proximity to completion than
is required for the other attempt offenses. “Reasonable apprehension of an imminent battery” =
Civil Tort Liability
B. Mens Rea – Dual Intent
147 Dual Intent
a) First “intent”: The actor must intentionally commit the acts that constitute the actus reus of
an attempt, e.g. she must perform an act that constitutes a substantial step in the direction
of committing the target offense
b) Second “intent”: The actor must commit the actus reus of an attempt with the specific
intent to commit the target offense
148 MPC Dual Intent: A person is not guilty of attempt unless she,
a) Purposely engages in conduct that would constitute the crime MPC 5.01(1)(a), AND
b) Acts with the purpose of causing or with belief that his conduct will cause the prohibited
result MPC 5.01(1)(b), OR
c) Purposely does … an act … constituting a substantial step in furtherance of the offense
MPC 5.01(1)(c)
149 Higher level of Mens Rea Required than for Target Offense
a) Attempt requires a purpose (or “specific intent”) to produce the proscribed result even
when recklessness or some lesser mens rea would suffice for conviction of the completed
offense.
b) High probability that conduct will result in prohibited offense is usually sufficient
c) Attempted Manslaughter: The requirement of specific intent means that there can be no
crime of attempted (involuntary) manslaughter, although it is widely accepted that there is
a crime of attempted (voluntary) manslaughter
(1) No Attempted Felony-Murder
d) Smallwood v. State (556) FACTS: D convicted with attempted murder. He knew he was
HIV positive, and had sex, knowingly exposed the risk of HIV-infection, and the resulting
risk of death by AIDS. (Murder requires “knowingly,” which requires a very high
probability) HELD: 1) Before an intent to kill may be inferred based solely upon the
defendant’s exposure of a victim to risk of death, it must be shown that the victim’s death
would have been a natural and probable result of the defendant’s conduct 2) Not enough
evidence showing result of Smallwood’s actions is sufficiently probable to support the
inference that the victim would die of AIDS
150 Attendant Circumstances
a) MPC 5.01(1) A person is guilty of an attempt if, “acting with the kind of culpability
otherwise required for commission of the offense,” she purposely engages in the conduct
in question.
(1) Clarification: the “purpose” requirement for an attempt does not apply to attendant
circumstances; a person is guilty of an attempt if she possess the mental state that would
suffice for the target offense
(2) HYPO: Statutory Rape – About to have sexual conduct with girl under 14 years of
age, but stopped by parents. MPC 5.01 (Commentary) – With respect to the age of the
victim, it is sufficient if he acts “with the kind of culpability otherwise required for the
commission of the crime,” which in the case supposed is none at all. Since mistake as
to age is irrelevant with respect to the substantive offense, it is likewise irrelevant with
respect to the attempt” [strict liability; put in to avoid impossibility challenge]
C. Actus Reus – Substantial Step
151 Last Act Test: No Longer the True Test
a) R. v. Eagleton (564) [1855] HELD: 1) In order to constitute attempt, as opposed to mere
preparation, the accused must have taken the last step which he was able to take along the
 22

road of his criminal intent. He must have done all that he intended to do and was able to
do for the purpose of effectuating his criminal purpose.
b) Criticism: In most cases it will not be possible for the police to prevent the target offense if
they must wait until the last act (i.e. pulling the trigger) is committed in order to make an
arrest
152 Dangerous Proximity Test
a) People v. Rizzo (565) [1927] FACTS: D planned to rob an individual of a pay roll, they
drove around to several establishments, but never found him. Arrested in front of one of
the searched establishments, but never saw or found the man they intended to rob. HELD:
1) For a conviction for attempt to commit a crime, the act or acts must come or advance
very near to the accomplishment of the intended crime. There must be dangerous
proximity to success. 2) D not guilty of attempt when they never found or reached the
presence of the person they intended to rob.
b) Concern: Locus penitentiae – judicial reluctance to move the threshold of criminality to an
earlier point in time has been the desire to preserve for the defendant an opportunity to
repent, to change one’s mind
153 Physical Proximity Test
a) An act “must go so far that it would result, or apparently result in the actual commission of
the crime it was designed to effect, if not extrinsically hindered or frustrated by extraneous
circumstances.
b) State v. Duke (567) FACTS: Solicitation for sexual acts with children over the internet.
Meeting set with undercover, D flashed lights and arrested. Convicted of attempted sexual
battery HELD: Reversed – overt acts were all planning and did not go far enough toward
their consummation to constitute attempt
154 Equivocality Test
a) An act which is in its own nature and on the face of it innocent is not a criminal attempt. It
cannot be brought within the scope of criminal attempt by evidence aliunde [e.g.
admission or confession] as to the criminal purpose with which it is done. … The law does
not punish men for their guilty intentions or resolutions in themselves.
b) McQuirter v. State (569) [1953, Alabama] FACTS: Negro man followed a white woman
from a diner, and he stopped pursuing her when seen by a neighbor. Chief of Police said
that he confessed. HELD: 1) There is evidence from which it may be inferred that at the
time of the attempt defendant intended to gratify his lustful desires against the resistance
of the female 2) The jury may consider social conditions and customs founded upon racial
differences, such as white woman and Negro man. 3) Conviction sustained (BAD LAW)
155 Substantial Step Test - MPC 5.01(2)
a) MPC 5.01(2) A substantial step must be “strongly corroborative of the actor’s criminal
purpose.” If strongly corroborative then following circumstances “shall not be held
insufficient as a matter of law”:
(1) Lying in wait, searching for or following the contemplated victim
(2) Enticing or seeking to entice the contemplated victim
(3) Reconnoitering the place contemplated for commission of the crime
(4) Unlawful entry of a structure, vehicle or enclosure of contemplated crime
(5) Possession of materials specially designed for unlawful use
(6) Possession, collection or fabrication of materials, at or near place w/no lawful
purpose
(7) Soliciting an agent to engage in conduct constituting an element of the crime
b) MPC starts early at the substantial step, because it has a formal renunciation statute
included in the code
D. Defense: Impossibility
156 Factual Impossibility: When an actor’s intended end constitutes a crime, but she fails to
complete the offense because of a factual circumstance unknown to her or beyond her control.
(No Defense)
(1) A pickpocket puts her hand in an empty pocket = Attempted larceny
(2) D sexually assaults V, but fails due to impotence = Attempted rape
 23

157 Legal Impossibility

a) Pure Legal Impossibility: Actor engages in lawful conduct that she incorrectly believes
constitutes a crime
(1) Example: Filing federal income tax on April 15, the true deadline, thinking deadline
is April 14. Not guilty of attempted violation of tax law
b) Hybrid Legal Impossibility: Actor’s goal is illegal, but the commission of the offense is
impossible due to a mistake by the actor regarding the legal status of some factual
circumstance relevant to the conduct.
(1) Example for (2) – D receives property that she believes is stolen. In fact, the
property had not been stolen. Uncontroversially, D is not guilty of receiving stolen
property, sence an element of the actus reus has not been proven – the stolen nature of
the goods
(2) Killing a dead man, thinking he is still alive (Mix of Both)
158 Model Penal Code: A person is guilty of an attempt if his conduct “would constitute the crime if
the attendant circumstances were as he believes them to be.” MPC 5.01(1)(a) Abolishes hybrid
legal impossibility offense
a) Rationale: A person who fails to consummate an offense because of impossibility is as
dangerous and culpable as one who succeeds
b) NOTE: Pure Legal Impossibility remains a defense
E. Defense: Abandonment
159 Model Penal Code: “Renunciation of Criminal Purpose”
a) MPC 5.01(4) A person is not guilty of a criminal attempt, even if her actions constitute a
substantial step in the commission of an offense, if: (1) she abandons her effort to commit
the crime or prevents it from being committed; AND (2) her conduct manifests a complete
and voluntary renunciation of her criminal purpose
(1) Fleeing from police is no defense, because abandonment is not voluntary
(2) Inmate stops climbing over fence because she doesn’t want to shame her family =
possible defense if believed by jury
b) Rationale: A person who voluntarily and completely abandons her criminal endeavor is no
longer dangerous. And, provides an incentive to an actor to turn away from her criminal
enterprise b/f she consummates the offense.
160 Common Law: The law traditionally denied any defense of abandonment, and many courts
continue to adhere to that view. However, to minimize the unfairness, courts may insist that the
threshold of criminality be placed very close to the last act, even when this approach means
freeing some defendants who almost certainly would not have repented.

XIII. ACCESSORIAL LIABILITY

A. General Common Law Principles

161 General Rule: A person is an accomplice in the commission of an offense if he intentionally
assists another person to engage in the conduct that constitutes the offense
162 Derivative Liability: There is no common law crime of “aiding and abetting.” The accomplice
is convicted of the offense committed by the primary party. If P does not commit the crime, the
accomplice cannot be convicted at common law, because of an absence of the “guilty principle”
a) Under MPC, if A “aids” P to commit a crime, but P does not engage in conduct sufficient
to constitute the crime or even attempt to commit the crime, then A’s conduct is an
“attempt” to commit the object crime, not attempted aiding and abetting. MPC 5.01(3)
163 Causation: A person may be found guilty as an accomplice even though actions do not satisfy
“but for” causation
164 Criticism: (1) peripheral/minor actors get caught in the net (2) punished more for attitude and
not actions (3) punishment may not be proportional to the moral guilt
165 Common Law Terminology:
a) Principle in the First Degree (commits or uses innocent agent)
b) Principle in the Second Degree (helps or encourages and is actually present)
c) Accessory Before the Fact (helps beforehand, but is not present)
 24

d) Accessory after the Fact (intentionally renders aid after the crime)

B. “Assistance”
166 If No Assistance: A person is not an accomplice unless his conduct in fact assists in commission
of the crime (open window example), CL Unintentional assistance does not result in
responsibility as an accomplice.
167 Trivial Assistance: An accomplice is liable even if the crime would have occurred without his
assistance. It is enough that the accomplice made commission of the crime slightly easier.
a) State ex rel. Attorney General v. Tally (629) FACTS: Judge sends telegram to tell operator
not to send a warning telegram HELD: If the aid in homicide can be shown to have put the
deceased at a disadvantage, to have deprived him of a single chance of life, but for which
he would have had, he who furnishes such aid is guilty though it cannot be known or
shown that the dead man, in the absence thereof, would have availed himself of the
chance.
(1) NOTE: It is not necessary for P to know that A is assisting him before A can be
found guilty of accessorial responsibility
b) Wilcox v. Jeffrey (628) the defendant was found guilty of aiding and abetting an American
jazz musician play unlawfully in England because he attended a concert along with
hundreds of others in the audience and later wrote about the concert in a magazine.
168 Presence: A person who is present at the scene of a crime, even if he is present in order to aid in
commission of the offense, is not an accomplice unless he assists in the crime
a) Hicks v. United States (607) FACTS: Cherokee reservation. One man points gun at white
man, and D sitting next to decedent. When Rowe points gun at decedent, he laughs and
says, “take your hat off and die like a man” Rowe shoots and kills, and they ride off
together HELD: (1) Language too ambiguous (2) words by the accused must have the
intention of encouraging and abetting crime [would require more active assistance] (3)
Statement directed to decedent
(1) (Specific Intent Required) Must find beyond a reasonable doubt that he had the
purpose to induce or command the death of the deceased.
b) Does not take much to overcome trivial assistance
(1) Sufficient if P knows A is there to render encouragement or to help if necessary
(2) Yelling words of encouragement is insufficient if P does not hear them
(3) If prior arrangement, may be held responsible for conspiracy
169 Omissions: A person may be an accomplice by failing to act to prevent a crime, if he has a duty
to act (same under MPC 2.06(3)(a)(iii)

C. Mens Rea – Pretending and Unintended

170 Two Mental States: An accomplice must (1) intentionally engage in the acts of assistance; and
(2) act with the level of culpability required in the definition of the offense in which he assisted.
171 The Pretending Principle
a) State v. Hayes (633) FACTS: Relative of storeowner feigns acquiescence in order to
obtain the arrest of defendant and advised the store owners of the plan. This relative
actually enters the store so he is the principal that engages in the actus reus. Smells of
entrapment. HELD: (1) Principal did not have mens rea, but defendant did not have the
actus reus. (2) the intent and act must combine and all the elements of the act must exist
and be imputable to the defendant [He had to enter the warehouse himself]
b) Vaden v. State (634) FACTS: Fish and Wildlife Protection Agency sends an officer to
catch Vaden for illegal hunting practices. Vaden flies aircraft, from which officer shoots
and takes four foxes in violation of the law. Vaden uses “public authority justification
defense” saying officers actions were justified HELD: (1) Justification is personal to the
agent (2) No entrapment, and the actions of officer not so outrageous as to constitute a
denial of due process DISSENT: Potential for abuse; Ultimate liability depends on which
foreseeable crimes the agent chooses to commit in order to secure convictions against his
criminal “accomplice” (Detective enters store)
c) Under MPC, the liability of the accomplice is measured by his culpability together with
 25

the conduct of the principal.

(1) Thus, an accomplice who assists a principal who cannot be convicted (b/c he lacks
mens rea or has a personal excuse) can still be convicted under MPC 2.06(1), AND
(2) The accomplice could be convicted of a more serious degree of the object crime
172 Natural and Probable Consequences Doctrine: An accomplice is guilty not only of the offense
he intended to facilitate or encourage, but also of any reasonably foreseeable offense committed
by the person he aids or abets.
a) People v. Luparello (615) FACTS: looking for ex-lover, asks friends to go find current
husband of ex-lover to get the information. Friends shoot the guy and get no information.
HELD: (1) He is guilty not only of the offense he intended to facilitate or encourage, but
also of any reasonably foreseeable offense committed by the person he aids and abets (2)
NATURAL AND FORESEEABLE CONSEQUENCE = NEGLIGENCE
(1) Dissent: “Foreseeable consequence” doctrine is inconsistent with the (1) notion that
criminal punishment must be proportional to the defendant’s culpable mental state, and
(2) idea that D be subject to a greater penalty only when he has demonstrated a greater
degree of culpability
b) Under MPC, the accomplice would have to act with the purpose or intent of encouraging
the specific criminal conduct of the principal. Negligence toward other crimes committed
by the principal is not a sufficient basis for accomplice liability.
173 Criminal Facilitation: aids, but does not have the purpose to commit the object crime, separate
offense graded by the severity of the crime committed by the principal
D. The Pinkerton Doctrine
174 Doctrine: A conconspirator is responsible for any criminal act committed by any other member
of the conspiracy, if the offense was an object of the conspiracy or was a reasonably foreseeable
consequence thereof.
a) In Pinkerton, the brother in jail was not guilty under accomplice liability because he did
not assist in the commission of the tax fraud crime.
b) However, he was guilty of the tax-law violations because they were the object of the
conspiracy.
E. Model Penal Code § 2.06
175 Forms of Complicity
a) Innocent Agent: A person is guilty of an offense that he did not personally commit if,
acting with the requisite mens rea, he causes an innocent or irresponsible person, to
commit the crime MPC 2.06(2)(a)
(1) Accomplice Liability MPC2.06(2)(a)
(2) NO Pinkerton Rule
176 Actus Reus
a) Any effort at aiding, even if ineffective or unknown to P, may satisfy the actus reus
requirement of accessorial liability. The term attempt here is the same as under MPC
5.01, which requires that the actor’s conduct “strongly corroborate the actor’s criminal
purpose” MPC 5.01(2) (Evidentiary jury question)
b) MPC 2.06(3)(a)(i)-(iii): To be an accomplice in the commission of an offense, the person
must
(1) Solicit the offense
(2) Aid, agree to aid, or attempt to aid in its commission, OR
(3) Fail to make proper effort to prevent commission of the offense, if he has a legal
duty to act
• “Agree to aid” – greater liability than common law, but less liability than
Pinkerton (Ex: agree to drive getaway and no robbery vs. getaway car stolen,
but no robbery)
• “Attempt to aid” – permits accomplice liability if an actor, tries, but fails, to
aid in commission of the offense (Ex: Open window, but robber enters door)
177 Mens Rea To Be an Accomplice
a) MPC 2.06(3)(a): To be an accomplice, the person must act with the purpose of promoting
or facilitating the commission of the offense
 26

(1) Conduct – A must have as her purpose that P will engage in the conduct elements of
the object crime. Knowledge as to P’s conduct is an insufficient basis for responsibility
under the MPC.
(2) Attendant Circumstances – Commentaries indicate that the drafters intended to let
the courts decide whether purpose as to circumstances is required for conviction or
simply the same culpability or mens rea toward circumstances as is required for the
object crime
(3) Result – Same culpability or mens rea toward result as would be required for
conviction of P for the object offense (Allows for Negligence in a Result Crime) MPC
2.06(4)
178 Abolition of Common Law Distinctions
a) MPC 2.06(7) An accomplice may be convicted although the perpetrator (1) has not yet
been prosecuted (2) has been convicted of a lesser crime, or (3) has been acquitted
b) Hindering Apprehension or Prosecution MPC 242.3
179 Limits on Liability
a) MPC 2.06(2) (a), (b) A person is not an accomplice in an offense committed by another if
he is the victim of that offense OR if the offense is so defined that his conduct is inevitably
incident to its commission
(1) Statutory rape: 15 year old girl lures him (It is impossible to say that the Act, which
is silent about aiding and abetting, can have intended that the girls for whose protection
it was passed should be punishable under it for the offenses committed upon
themselves.) MPC 2.06(2)(a)
(2) Prostitution: trying to convict male customer. (It takes two to tango. No one can
draft a prohibition of adultery without awareness that two parties to the conduct
necessarily will be involved. Must leave the definition of the crime itself as the selective
judgment on complicity.) MPC 2.06(2)(b)
b) Abandonment MPC 2.06(6)(c): Not an accomplice if he terminates his participation
before the crime is committed and (1) either neutralizes his assistance (2) gives timely
warning to the police of the impending offense, or (3) in some other fashion prevents
commission of the crime
180 Legal Incapacity to commit the substantive offense
a) MPC 2.06(5) a defendant who was herself legally incapable of committing a particular
crime may become an accomplice if she helps someone who is legally capable of
committing the offense

F. Relationship to Accomplice Liability to Criminal Attempts

181 The Code goes well beyond the common law by permitting an accomplice to be convicted of
criminal attempt, if he attempts to aid in the commission of an offense, although the other
person does not commit or attempt the offense.
182 HYPO: X learns two friends are stalking enemy Z, but has no communication. Knows that Z is
about to be warned through e-mail. X wants to make sure Z does not get email so he sends 150
emails. MPC 2.06(3) “aids or agrees or attempts to aid such other person in planning or
committing” MPC 5.01(2) requires that the actor’s conduct “strongly corroborate the actor’s
criminal purpose”
a) Common Law – As long as the aid is completely ineffective or P does not know that any
encouragement is being given, most courts will probably not find accomplice liability.
b) MPC 5.01(3) a person who engages in conduct designed to aid another to commit a crime
which would establish his complicity under 2.06 if the crime were committed by such
other person, is guilty of an attempt to commit the crime, although the crime is not
committed or attempted by such person.
G. Federal Complicity Statute
183 Federal Complicity Statute, 18 U.S.C. § 2 – (a) Whoever commits an offense against the United
States or aids, abets, counsels, commands, induces or procures its commission, is punishable as
a principal (b) Whoever willfully causes an act to be done which if directly performed by him
or another would be an offense against the United States, is punishable as a principal.
 27

XIV. CONSPIRACY
CONSPIRACY IS THE MOST FREQUENTLY CHARGED OFFENSE
A. Actus Reus
184 Overt Act: At common law, the crime of conspiracy is committed as soon as the agreement is
made. No act in furtherance is required.
185 MPC 5.03(5) Requires an overt act except for felonies of the first and second degree
186 The agreement need not be in writing, nor even be expressed. It may be implied from the
actions of the parties. (e.g. Choreography) May be satisfied by acts that would be considered
merely preparatory in law of attempts
187 Nature of Agreement: At common law, the object of the agreement must be unlawful. For
purposes of conspiracy, an “unlawful” act is a morally wrongful act; it need not be a criminal
act. MPC 5.03(1) Object of the agreement must be a crime
a) Interstate Circuit v. United States (694) FACTS: Movie theater chains that sent a letter to
8 distributors, listing names of all, to restrict admission price to 25 cents, and not allow
double-features for first runs HELD: (1) To establish agreement the court is compelled to
rely on inferences drawn from the course of conduct of the alleged conspirators (2)
Enough that knowing concerted action was contemplated, they adhered and participated
(3) Knew others asked to participate and cooperation was essential for success (4) Knew it
would result in restraint of trade in violation of Sherman Act
(1) A conspiracy may exist if there is no communication and no express agreement,
provided that there is a tacit agreement reached without communication
b) United States v. Alvarez (699) FACTS: Driver of truck nods and says he will be at loading
dock for marijuana, stung by DEA HELD: D cannot escape criminal responsibility on the
grounds that he did not join the conspiracy until well after its inception, or because he
plays a minor role in the total scheme
(1) MPC 2.06(3) Commentaries – conspirators are liable for substantive crimes of
their coconspirators only when the strict conditions for accomplice liability are met
B. Mens Rea
188 General Rule: Common law conspiracy is a specific-intent offense. The parties must intend to
agree (the actus reus of the conspiracy) and intend that the objects of their agreement be
achieved.
189 MPC 5.03(1) A person is not guilty of conspiracy unless she acts with the purpose of
promoting or facilitating the commission of the conduct that constitutes a crime.
190 Purpose versus knowledge
a) Furnishing Goods or Services with knowledge that another person intends to commit an
unlawful act: Knowledge, coupled with indifference as to whether the offense is
committed, is insufficient.
b) United States v. Falcone [U.S.] HELD: Purpose mens rea may be inferred from
knowledge, if there is evidence that the party had a stake in the venture
c) People v. Lauria (704) FACTS: Call-girl activity bust for prostitutes that use a message
service, owner knows that prostitutes use his services, but has other customers that are not
prostitutes, and cooperates w/police when prostitute is named directly HELD: (1) Both the
element of knowledge of the illegal use of the goods or services and the element of intent
to further that use must be present in order to make the supplier a participant in criminal
conspiracy (2) WRT misdemeanors, positive knowledge of the supplier that his products or
services are being used for criminal purposes does not, without more, establish an intent of
the supplier to participate in the misdemeanor. (3) criminal purpose may be inferred from
knowledge if:
(1) Supplier has stake in the venture [inflated rent for prostitute in hotel]
(2) No other legitimate use for goods or services exists [horse-racing info by wire;
directory of prostitutes]
(3) Volume of business with the buyer is grossly disproportionate to any legitimate
demand [narcotics sale to physician 300 times more than usual]
 28

C. Collateral Effects of Conspiracy

191 Co-conspirator Exception to Hearsay Rule: Permits introduction against one co-conspirator or
out-of-court statements made by another applies whether or not the parties have been formally
indicted or convicted of conspiracy, provided that the statement is in furtherance of a
conspiratorial agreement between them.
a) Krulewitch v. United States (671) FACTS: Charge that defendant induced and persuaded
another woman to go into prostitution. Hearsay error from partners’ warning to speak to
lawyers before making a testimony to the police made after Arrest HELD: (1) Statements
for hearsay exception must be in furtherance of the objectives of the conspiracy charged in
the indictment (2) There is no “implied agreement to conceal” unless alleged
b) Bourjaily v. United States (678) [U.S.] HELD: (1) Co-conspirator hearsay becomes
admissible under Federal Rules of Evidence whenever the judge determines by a
preponderance of the evidence that the defendant was a member of the conspiracy
(1) State Courts: Usually disallow hearsay statement itself in determining its
admissibility to help assure that a defendant is convicted only on credible evidence.”
192 Duration of the Conspiracy
a) MPC 5.03(7)(a) conspiracy is a continuing course of conduct which terminates when the
crime or crimes which are its object are committed or the agreement that they be
committed is abandoned by the defendant and by those with whom he conspired
(1) May not extend unless alleged in indictment (Collateral consequences only in effect
when conspiracy is in existence, so defendants try to shorten, prosecutors try to extend.)
(2) Statute of Limitations begins at the termination of the conspiracy
b) Grunewald v. United States (679) [U.S.] HELD: A particular conspiracy cannot be treated
as including a cover-up agreement unless there is “direct evidence of an express original
agreement among the conspirators to continue to act in concert in order to cover up traces
of the crime.”
193 Punishment
a) MPC 5.05(1) Punishment for conspiracy is the same as that authorized for the object
crime, except in the case of most serious felonies
(1) NOTE: Attempt is not punishable under the Code until the defendant has taken a
substantial step that is strongly corroborative of the criminal purpose. In such a case,
punishment is permitted up to the level authorized for the object crime. But a
conspiracy may be punishable from the moment an agreement is made
b) May no longer reach non-criminal activity, except maybe “obstruction” of government
(1) MPC 1.07 Prosecution for Multiple Offenses “May not be convicted of more than
one offense if one offense consists only of a conspiracy or other form of preparation to
commit the other
D. Merger and Pinkerton Doctrine
194 General Rule: Attempt merges with the target crime. Conspiracy does not under Pinkerton.
Conspiracy does merge under MPC.
195 Pinkerton Doctrine: (1) Commission of the substantive offense and a conspiracy to commit it
are separate and distinct offenses, and (2) may impose vicarious liability on each conspirator for
the acts of other based on an objective standard of reasonable foreseeability
a) Pinkerton v. United States (684) FACTS: Brothers agree to defraud IRS with moon-shine
scheme, but no evidence to show that one brother participated directly in the commission
of the substantive offense HELD: (1) So long as the partnership in crime continues (w/o
abandonment) the partners act for each other in carrying it forward (2) An overt act of one
partner may be the act of all without any new agreement specifically directed to that act
(3) The criminal intent to do the act is established by the formation of the conspiracy
196 Rationale to Pinkerton: Concerted action both increases the likelihood that the criminal object
will be successfully attained and decreases the probability that the individuals involved will
depart from their path of criminality. Group association for criminal purposes often, if not
normally, makes possible the attainment of ends more complex than those which one criminal
could accomplish.
a) Rejected by MPC 1.07(b) defendant may not be convicted of more than one offense if
 29

“one offense consists only of a conspiracy or other form of preparation to commit the
other.
(1) NOTE: Commentaries say combination may be obtained when criminal objectives
transcend any particular offenses that have been committed in pursuance of its goals
197 Applications of Pinkerton
a) State v. Bridges (687) FACTS: Argument at party, one guy gets two friends to help, the
two friends fire on to the crowd killing one and injuring several HELD: (1) A co-
conspirator may be liable for the commission of substantive criminal acts that are not
within the scope of the conspiracy if they are reasonably foreseeable as the necessary or
natural consequences of the conspiracy (New Jersey, following Pinkerton) (2) Friends
carrying guns, so it is foreseeable
(1) Disproportionality to his own personal culpability. Only intends to hold people at
bay, but convicted for murder (life-imprisonment) for actions of friends. MPC tries to
make this more difficult. Not even felony-murder reaches the level of the court.
b) People v. Alverez (691) FACTS: ATF bust of drug transaction goes sour and some
conspirators start shooting officers HELD: (1) Murder was reasonably foreseeable in drug
transaction, when participants carrying weapons (2) May be held liable for reasonably
foreseeable but unintended crimes – regardless of individual involvment
(1) Felony Murder requires a predicate felony like murder, burglary etc. or California
Analysis of inherently dangerous crimes, which include large drug transactions
E. Plurality Requirement
198 Common Law Rule: No person is guilty of conspiracy unless two or more persons possess the
requisite mens rea. (Plurality Doctrine)
a) Example: Undercover police officer agrees to rob bank with A. The officer does not have
the requisite mens rea, because she did not intend the robbery to occur, so A is not guilty of
conspiracy, because two (or more) persons did not possess the requisite mens rea.
(insanity, juvenile, feigned agreement, etc.)
b) Clarification: The plurality doctrine does not require that two persons be prosecuted and
convicted. It is satisfactory that the prosecutor proves beyond a reasonable doubt that
there were two or more persons who formed the agreement with the requisite mens rea.
199 MPC 5.03(1) Rejects Plurality requirement. Instead it defines the offense in unilateral terms.
“A person is guilty of conspiracy with another person if she agrees with such other person.” It
takes two people to agree, but it takes only one person to be guilty of conspiracy.
F. Parties to an Agreement & Multiple Conspiracies
200 MPC 5.03(3) There is only one conspiracy between parties, even if they have multiple criminal
objectives, as long as the multiple objectives are part of the same agreement or of a “continuous
conspiratorial relationship.”
201 Wheel Conspiracy: In the center (the hub) is one person or group, who conducts illegal dealings
with various other persons or groups (the spokes).
a) Kotteakos v. United States [U.S. 1946] (714) FACTS: Large conspiracy to get credit for
loans with faulty information, that is run by one individual who makes several independent
agreements HELD: (1) Thieves who dispose of their loot to a single receiver – a single
fence – do not by that fact alone become confederates; they may, but it takes more than
knowledge that he is a fence to make them such (2) Reversed
202 Chain Conspiracies: Multiple layers of personnel, in which each person or group in the
conspiracy has specialized responsibilities that link together the various aspects of the unlawful
conduct. By its nature and construction it creates a community of interest between or among
the parties. It is justifiable to treat the arrangement as a single conspiracy.
a) Blumenthal v. United States [U.S. 1947] (717) FACTS: Wholesale liquor company
arranges separately with businessmen to sell portions of shipment for prices above
maximum permitted. D: (1) two agreements were merely steps in the formation of the
larger and ultimately more general conspiracy (2) with knowledge of the plans general
scope, if not its exact limits, sought a common end, to aid in disposing of the whiskey. (3)
True, each salesman aided in selling only his part. But he knew the lot to be sold was
larger and thus that he was aiding in a larger plan
 30

203 Chain-Wheel Conspiracies

a) United States v. Bruno [U.S. 1939] (718) FACTS: Conspiracy to smuggle narcotics in NY
and to distribute in TX and LA, no evidence to show communication b/w smugglers and
retailers HELD: (1) Smugglers knew that the middlemen must sell to retailers, and the
retailers knew that the middlemen must buy from importers (2) Jury may conclude that all
part of a common venture, a participant and abettor in the sense that the success of his
particular role, was dependent on the success of the whole
G. Defense: Wharton’s Rule
204 Rule: If a crime by definition requires two or more persons as willing participants, there can be
no conspiracy to commit that offense if the only parties to the agreement are those who are
necessary to its commission. (Rejected by the MPC)
a) Gebardi v. United States (724) FACTS: Violation of Mann Act in transportation of woman
across state lines for the purpose of engaging in sexual intercourse. HELD: 1) Where it is
impossible under any circumstances to commit the substantive offense without cooperative
action the preliminary agreement between the same parties to commit the offense is not an
indictable conspiracy
205 MPC 5.04Commentaries: “That an offense inevitably requires concert is no reason to
immunize criminal preparation to commit it.
H. Defense
206 Legislative Exemption: At common law and under MPC 5.04(2), a person may not be
prosecuted for conspiracy to commit a crime that is intended to protect that person (e.g.
statutory rape)
a) Significance of Rule: In one party to a two-party conspiracy is exempt from prosecution,
there is now only one remaining party to the conspiracy. Under the plurality doctrine, that
person must also be acquitted of conspiracy.
207 Abandonment: A conspiracy is generally considered to be abandoned when none of the
conspirators is engaging in any action to further the conspiratorial objectives. If such inactivity
continues for a period equal to the statute of limitations, prosecution will be barred. MPC
5.03(7)(b)
a) Affirmative acts inconsistent with the object of the conspiracy and communicated in a
manner reasonably calculated to reach co-conspirators have generally been regarded as
sufficient to establish withdrawal or abandonment
208 Renunciation
a) MPC 5.03(6) Allows defense only if the circumstances manifest renunciation of the
actor’s criminal purpose and the actor succeeds in preventing commission of the criminal
objective.
(1) State courts reject as too severe, requiring only substantial effort to prevent the
crime

XV. SELF-DEFENSE AND DEFENSE OF ANOTHER

A. General Common Law Principles
209 A person who is not an aggressor is justified in using deadly force upon another if she
reasonably believes that such force is necessary to protect herself from imminent use of
unlawful deadly force by the other person
a) MPC 3.04(1) use of force upon or toward another person is justifiable when the actor
believes that such force is immediately necessary for the purpose of protecting himself
against the use of unlawful force by such other person on the present occasion (no
obligation to retreat)
b) MPC 3.04(b)(ii)(1) no duty to retreat MPC 3.04(b) deadly force is not justifiable unless
that actor believes that such force is necessary to protect himself against death, serious
bodily harm, kidnapping, or sexual assault (burglary is not included)
210 “Deadly Force” is force which the actor uses with the purpose of causeing or which he knows to
create a substantial risk of causing death or serious bodily harm MPC 3.11(2)
a) MPC 3.11(2) Deadly Force – A threat to cause death or serious bodily harm by producing
a weapon as long as the actor’s purpose is to create an apprehension that he will use deadly
 31

force if necessary does NOT constitute deadly force. (Coffee: this might be unlawful
force, but it is not unlawful force, pointing gun in this instance will not constitute
aggravated assault)
211 “Aggressor” Issue: A person may not use deadly force in self-defense if she is the aggressor at
the time of the conflict
a) United States v. Petterson (792) FACTS: Teenagers try to still windshield wipers from an
old car. The owner brings gun and tells them not to move, when the teenagers are getting
in the car. One of the teenagers grabs a lug wrench and advances, then the owner shoots
him. HELD: 1) One who is the aggressor in a conflict culminating in death cannot invoke
the necessities of self-preservation. Must communicate withdrawal before restored right of
self defense Petterson is under no obligation to retreat because it is his own property.
(1) Maybe case would be different if the kids were stealing the car because that would
be a felony, whereas stealing the wipers is a misdemeanor
b) MPC 3.04(2)(b)(i) denies justification for the use of deadly force if the actor, with the
purpose of causing death or serious bodily harm, provoked the use of force against himself
in the same encounter
212 Burden of Proof
a) MPC 3.01(1) Self-Defense is an affirmative defense, and a material element of an offense
under MPC 1.13(10)(ii)
b) Under MPC 1.12(1), the Government bears the burden of proof beyond a reasonable doubt
of disproving an affirmative defense. (If there is a reasonable doubt in your mind whether
this person is entitled to use lethal force, then you must acquit.)
B. Reasonable Belief
213 General Rule: a person may use deadly force in self-protection if she has reasonable grounds to
believe, and actually believes, that she is in imminent danger of death or serious bodily injury,
even if her reasonable beliefs are incorrect in some regard.
214 Model Penal Code: Self-protection defense may be raised if the actor subjectively believes that
the facts support the defense, even if her belief is unreasonable MPC 3.04(b)
a) When subjective belief is unreasonable: Under MPC 3.09(2) the justification defense is
not available if the actor’s belief is reckless or negligent, and if the underlying charge is
based on such a level of culpability
215 People v. Goetz (751) [NY] FACTS: White man on subway is approached by Black youths who
tell him “Give me five dollars.” Goetz, who was carrying a handgun, shoots all of the boys
even after they pose no more threat to him. Goetz claims that he was scared. HELD: 1) the
determination of reasonableness must be based on the circumstances facing a defendant or his
situation, which include (a) any knowledge about the persons involved (b) the physical
attributes of those involved, and (c) prior experiences which would show a reasonable basis for
a belief that a person’s intentions were to injure or rob him or that deadly force was necessary
a) Jury convicted Goetz on possession of concealed weapon, but acquitted on all other counts
C. Battered Woman’s Syndrome
216 General: Expert testimony evidence used when a battered woman has killed the abuser in non-
imminent circumstances to show either (a) that the abused woman subjectively believed that she
had to kill the abuser at that moment, OR (b) the reasonableness of the belief for someone
under similar circumstances
217 State v. Kelley (763) FACTS: D was regularly beaten by husband for several years. She stabs
and kills him with a pair of scissors after an argument and choking. Dispute over whether
Battered Women’s Syndrome evidence should be admitted wrt reasonableness of D’s actions
HELD: 1) Admissible to help determine the honesty and reasonableness of defendant’s belief
that she was in imminent danger of death (dispel myths and assumptions of why she has stayed
in the home for so long)
a) One common characteristics of a battered wife is her inability to leave despite such
constant beatings; her “learned helplessness”; her lack of anywhere to go; her feeling that
if she tried to leave, she would be subjected to even more merciless treatment; her belief in
the omnipotence of her battering husband; and sometimes her hope that her husband will
change his ways
 32

218 Non-confrontational use of lethal force: Woman kills abuser when she is not under imminent or
immediate attack.
a) State v. Norman (776) FACTS: D beaten by husband for 25 years and forced into
prostitution. D shoots her husband in the back of the head while he is sleeping HELD: 1)
D must show that at the time of the killing it appeared to her that she believed it to be
necessary to kill the decedent to save herself from imminent death or great bodily harm.
That belief must be reasonable. 2) A defendant’s subjective belief of what might be
“inevitable” at some indefinite point in the future does not equate to what she believes to
be “imminent”
(1) NOTE: Her going to get a weapon at somebody else’s home to get the gun gives her
cooling off time, which will eliminate a provocation defense
(2) She might qualify for a reduced sentence to manslaughter for extreme emotional
disturbance. Diminished capacity, which resembles medical incapacity, might be
difficult to prove.
D. Imminent Danger Requirement
219 General Principle: A nonagressor may not use deadly force except to resist imminent use of
unlawful deadly force
220 MPC 3.04(1): Replaces “imminency” requirement with the language “immediately necessary . .
. on the present occasion” This language gives the defendant more freedom to act
a) HYPO: An abusive husband tells his wife that he is going to another room to obtain an
object to kill her. The wife may use deadly force at this time, if she believes that she will
not be able to defend herself when he returns.
221 Unlawfulness of Deadly Force: “Unlawful” force is wrongful force
a) Justifiable force: A threat is not unlawful if it is justified (i.e. Police officer threatens
dangerous felon
b) Excusable force: A threat is unlawful if it is unjustifiable, although excusable (i.e. insane
person’s threat to kill is unlawful, although excusable. Recipient of threat may kill in self-
defense)
222 Proportional Force: Deadly force is not permitted unless it is proportional to the force
threatened, i.e., the aggressor is threatening the use of deadly force
E. Necessity and Duty to Retreat
223 General Rule: Deadly force is not justified unless it is necessary
a) HYPO: A, an aged aggressor, threatens to stab D with a knife. D is strong enough to easily
wrest the knife from A. D may not used deadly force to repel A, as it is unnecessary.
224 Retreat Rule: A non-aggressor must retreat if she knows that she can avoid the need to use
deadly force with complete safety to herself MPC 3.04(2)(b)(ii), subject to various exceptions
a) State v. Abbott (788) FACTS: Neighbors get into a fight. D was not the initial aggressor,
but he injures the other neighbors with a hatchet that was carried by one of the others, but
taken by D. HELD: 1) The issue of retreat arises only if the defendant resorted to deadly
force 2) One who is wrongfully attacked need not risk injury by retreating, even though he
could escape with something less than serious bodily injury. (court focused on “knows”
and “with complete safety” in MPC 3.04(b)(ii))
F. The “Castle” Exception
225 The actor is NOT obliged to retreat from his dwelling or place or work, unless he was the initial
aggressor or assailed by a co-worker MPC 3.04(b)(ii)(1)
a) In the workplace you cannot use violent force against a co-worker when retreat is possible.
However, you do not have to retreat from your spouse. No need to retreat from a stranger
in either case. (Coffee: Legislature probably thinking about lack of need to retreat from a
guest, and probably not thinking about the spouse example)
G. Excessive Force
226 MPC 3.04(c) when you are entitled to use force, then a person employing protective force may
estimate the necessity thereof under the circumstances as he believes them to be when the
foresee is used, without retreating, surrendering possession, doing any other act which he has
no legal duty to do or abstaining from any lawful action
a) NO REASONABLE MAN STANDARD
 33

XVI. DEFENSE OF PROPERTY AND HABITATION

A. Defense of Property
227 General Rule: A person is justified in using force to defend her real or personal property if (a)
the defender is in lawful possession of the property and (b) the actor believes that he was
unlawfully disposed of land or movable property and is entitled to possession (c) force is used
immediately or on fresh pursuit after such dispossession, or (d) the other person has no claim of
right to the property
228 Belief Requirement: the right to use force to protect property is based on the actor’s subjective
beliefs under MPC 3.09
229 Recapture of Property: A person may use non-deadly force to retake possession of land or to
recapture personal property, even if she does no act in fresh pursuit, if she believes that the
dispossessor has no claim of right to the property MPC 3.09(1)(b)(ii)
a) Exception: In the case of land, a recapturer may not use force unless she believes that it
would constitute an “exceptional hardship” to delay re-entry until she can obtain a court
order.
b) However, the idea is a limited time to pursue before you become your own private
detective and public executioner
230 Deadly Force: A person may use deadly force against a dispossessor if she believes
(SUBJECTIVE STANDARD) that (a) V is attempting to commit arson, burglary, robbery, or
other felonious theft or property destruction (b) V previously used or threatened to use deadly
force against D or another person in D’s presence; OR (c) non-deadly force would expose the
actor to substantial danger of serious bodily harm; AND (d) the force is immediately necessary
to prevent commission of the offense MPC 3.06(3)(d)(ii)(A)
a) NOTE: Deadly force is justified to protect personal property even when there is no present
risk of bodily injury to the property owner or another OVERBREADTH
(1) No use of deadly force was justifiable under common law
b) Oddity of the rule: When somebody pulls a knife on you, saying that he doesn’t like you,
you have a duty to retreat, and may not use deadly force unless you are in your own
dwelling. When it is burglary you at least have a limited ability to use deadly force. YOU
MAY NOT BE YOUR OWN PUBLIC EXECUTIONER (Statute is probably overbroad in
that once the person threatens deadly force to rob you, it may be a license to kill)
B. Defense of Habitation
231 Deadly Force: A person may use deadly force to protect her right to inhabit her home in safe
repose, privacy and security if she believes that (a) V is seeking to dispossess her from the
dwelling; (b) V has no claim of right to possession of the property; and (c) such force is
immediately necessary to prevent the dispossession
232 “Make My Day Statute”
a) New York 35.20 – may use deadly physical force upon such other person when he
reasonably believes such to be necessary to prevent or terminate the commission or
attempted commission of such burglary
b) MPC 3.04(b)(ii)(1) no duty to retreat MPC 3.04(b) deadly force is not justifiable unless
that actor believes that such force is necessary to protect himself against death, serious
bodily harm, kidnapping, or sexual assault (burglary is not included)
C. Request to Desist
233 MPC 3.06(3)(a) use of force is justifiable only if the actor first requests the person against
whom such force is used, to desist from his interference with the property, unless the actor
believes that (i) such request would be useless (ii) dangerous to himself, or (iii) substantial harm
will be done to the property
D. Spring Guns
234 Common Law Rule: A person may use a mechanical device, such as a spring gun to inflict
deadly force on another “where intrusion is, in fact, such that a person, were he present, would
be justified in taking the life or inflicting the bodily harm with his own hands.
a) People v. Ceballos (796)
 34

235 Critical Feature of Common Law Rule

a) The user of a spring gun acts at her own peril: deadly force must be necessary; reasonable
appearances will not suffice
b) HYPO: A small child opens a spring gun door thinking it is her own house. Even if D, as a
reasonable person, would have believed that the intruder was dangerous, D will not be able
to invoke the defense of habitation, b/c the child was not in fact dangerous
236 Model Penal Code: The use of force does not extend to any mechanical device that is intended
to cause or is known to create a significant risk of causing death or serious bodily harm

XVII. LAW ENFORCEMENT

A. Deadly Force: Crime Prevention

237 Misdemeanors: Deadly force is never justifiable in the prevention of a petty offense, i.e.
misdemeanor. Only moderate non-deadly force may be used
a) Durham v. State (802) FACTS: Game warden chases a person that is trying to steal a boat,
he catches him, but the guy hits him on the head with an oar, and he shoots him in the arm
HELD: 1) An officer may not kill or shed blood in attempting to arrest a misdemeanant
who is fleeing, but not resisting 2) If the defendant physically resists, the officer need not
retreat but may press forward and repel the resistance with such force, short of taking life,
as is necessary to effect the arrest
238 Felonies: Majority view says deadly force is only permitted if the police officer or private
citizen reasonably believes that the other person is about to commit an “atrocious” or “forcible”
felony People v. Ceballos
a) Atrocious felonies include: murder, manslaughter, robbery, arson, burglary, and rape.
Involve significant risk of serious bodily harm to innocent persons.
239 MPC 3.07: A police officer or private citizen may not use deadly force against another unless
he believes [SUBJECTIVE STANDARD] that (1) there is a substantial risk that the suspect will
cause death or serious bodily harm to another person unless the commission or consummation
of the offense is prevented (2) the force is immediately necessary to prevent commission of the
crime and (3) use of deadly force presents no substantial risk of injury to bystanders
B. Deadly Force Arrest
240 Misdemeanors: Deadly force is never permissible to effectuate an arrest of a misdemeanant,
even if the misdemeanant will successfully avoid arrest otherwise. Only moderate non-deadly
force is allowed.
a) Deadly Resistance: If a person resists arrest by using deadly force, the arresting party may
respond with deadly force, but the justification for this is self-defense, rather than a law
enforcement defense.
241 MPC 3.07(1) & (2): Deadly force may never be used by a private citizen, acting on his own, to
make an arrest or to prevent a suspect’s escape. However, a police officer or assisting citizen
may use deadly force to effectuate a felony arrest if he believes [SUBJECTIVE STANDARD]
that (1) the force can be applied at no serious risk to innocent bystanders (2) such force is
immediately necessary to effectuate the arrest; and either (3a) the felony for which the suspect
is being arrested included the use or threatened use of deadly force, or (3b) a substantial risk
exists that the suspect will cause serious bodily harm to another if he is not apprehended
immediately MPC 3.07(1), 3.07(2)(b)
C. TENESEE V. GARNER
242 Constitutional Rule: It is unconstitutional on 4th Amendment grounds for a police officer to use
deadly force to prevent the escape of a fleeing felony suspect, unless: (1) the force is necessary
to prevent the suspect’s successful flight; (2) if it is practical to do so, he warns the suspect of
his intention to use deadly force; and (3) the officer has probable cause to believe that the
suspect, if not immediately arrested, poses a significant threat of death or serious injury to the
officer or others
a) Concerns for (a) unreasonable search and seizure (b) disproportionality (c) now only
murder is capital offense (and, even then, capital punishment isn’t mandatory)
243 Examples of Permissible Deadly Force: Deadly force may be reasonable (1) if the suspect
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threatens the officer with a weapon; or (2) the officer has probable cause to believe that the
suspect committed a crime involving the infliction or threatened infliction of serious physical
harm
244 Tennessee v. Garner (804) [U.S. 1985] FACTS: Police officer chasing a 15 year old purse
snatcher, that is going to get away by climbing over a fence. Statute provides that “if after
notice of the intention to arrest the defendant, he either flee or forcibly resist, the officer may
use all the necessary means to effect the arrest” HELD: 1) A police officer may not seize an
unarmed, nondangerous suspect by shooting him dead. 2) The Tennesee statute is
unconstitutional insofar as it authorizes the use of deadly force against such fleeing suspects

XVIII. NECESSITY (RESIDUAL JUSTIFICATION)

A. Common Law Elements of the Defense
245 Lesser-Evil Analysis
a) The harm D seeks to prevent by his conduct must be greater than the harm that he will
cause by his conduct
b) D’s belief that he is acting in the proper manner is not by itself sufficient
246 Imminency of Harm
a) Danger must appear to be “threatening to occur immediately, near at hand. And
impending.”
b) Actor must reasonably believe that violating the law is the only way to prevent the
threatened (greater) harm
247 Causal Element
a) The actor must reasonably anticipate that his actions will abate the threatened harm.
248 Non-fault of the actor
a) Ex: guy who negligently causes fire can’t break in house to get fire extinguisher
249 New York Justification – Conduct must be necessary as an emergency measure to avoid an
imminent injury, when developed through no fault of the actor
B. Prison Escapes, Marihuana, and Civil Disobedience
250 People v. Unger (809) FACTS: Prison escape when threatened with death and sexual assault
HELD: 1) Conduct which would otherwise be an offense is justifiable by reason of necessity if
the accused was without blame in occasioning or developing the situation and reasonably
believed such conduct was necessary to avoid a public or private injury greater than the injury
which might reasonably result from his own conduct 2) Matters which go to the weight and
credibility of D’s testimony include (absence of one or more does not preclude):
a) Prisoner faced with specific threat of death, forcible sexual attack or serious bodily injury
b) No time for a compliant to the authorities or history of futile complaints
c) No time or opportunity to resort to the courts
d) Prisoner immediately reports to the proper authorities when he attained safety from
immediate threat
251 United States v. Bailey (812) [U.S.] HELD: A prerequisite for invoking the necessity defense in
a prison escape case is that the defendant make a bona fide effort to surrender or return “as soon
as the duress or necessity had lost its coercive force”
252 MPC 3.02 Commentaries: a court could consider whether recognition of the defense when a
prisoner has escaped to avoid assault would have the effect of substantially encouraging
unjustified escapes.
253 Commonwealth v. Hutchins (814) FACTS: Victim of progressive systemic sclerosis, who was
charged with illegal possession and cultivation of marijuana, which produced a remarkable
remission in symptoms HELD: 1) Alleviation of defendant’s medical symptoms would not
clearly outweigh the potential harm to the public 2) Reasonably possible negative impact of
such a judicial declaration on the enforcement of drug laws
a) Government may also claim that drug is not necessary, because other prescription drugs
for pain relief exists
254 United States v. Schoon (820) FACTS: Protesters of war in El Salvador splashed blood on IRS
papers and documents. Asserted necessity defense to avoid further bloodshed in that country
HELD: 1) Indirect civil disobedience involves violating a law or interfering with a government
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policy that is not itself, the object of protest – the necessity defense is inapplicable to such cases
[As opposed to direct civil disobedience like Sit-ins claiming invalidity of segregation laws]
C. Model Penal Code §2.03
255 Belief Requirement: The actor must believe that his conduct is necessary to avoid harm to
himself or to another. Imminency of harm is not required.
256 Balancing of harms: The harm that the actor seeks to avoid must be greater than that sought to
be avoided by the law prohibiting his conduct.
a) Homicide: No bar to defense in homicide cases, if there is a net benefit
257 Legislative intent: There must not plainly appear a legislative intent to exclude the defense (e.g.
Hypodermic Needle Exchange)
258 Fault of the Actor: If actor is reckless or negligent, the defense is unavailable for prosecution
for any offense for which recklessness or negligence is sufficient MPC 3.02(2)
XIX. DURESS
A. Duress: Justification or excuse
259 No balance of social harm, we know what you did was wrong, but it is a question of whether
we will excuse you for doing something under coercion that an ordinarily reasonable person
could not resist doing
260 Duress versus necessity: In the case of duress, the defendant acts as the result of an unlawful
human threat, whereas in the case of necessity, she acts because of a natural emergency
261 Blameworthiness: Usually based on proposition that, in light of the unlawful threat, someone
else may be blamed for the ultimate harm
262 State v. Toscano (845) FACTS: Conspiracy to defraud insurance company charge, defended by
chiropractor on grounds of duress, that the leader threatened kill his wife. D changes address
and phone number, and does the act. Lower court required “imminence” and threat directly to
the actor HELD: 1) To excuse a crime, the threatened injury must induce such a fear as a man
of ordinary fortitude and courage might justly yield to 2) adopted MPC, no longer requiring
imminence “duress shall be a defense to a crime other than murder if the defendant engaged in
conduct because he was coerced to do so by the use of, or threat to use, unlawful force against
his person or the person of another, which a person of reasonable firmness in his situation
would have been unable to resist
a) NOTE: Some states, by statute, continue to require that the actor have reasonable cause to
believe that his live was in danger
B. Model Penal Code §2.09
263 Coercion: D must have been coerced to commit the crime by the use, or threatened use, or
unlawful force by X, against her or another.
a) X need not order D to commit the offense, a use or threat of force is sufficient
b) Force need not be deadly, but economic or reputational threats do not qualify
264 Reasonable firmness test: A person of reasonable firmness in D’s situation would have been
unable to resist the coercion
265 Blameworthiness: Defense unavailable to a person who recklessly placed herself in the
coercive situation. But if negligent, may claim duress for all non-negligence crimes. MPC
2.09(2)
266 MPC Commentaries: There is a significant difference between the situations in which an actor
makes the choice of an equal or greater evil under the threat of unlawful human force and when
he does so because of a natural event. In the former situation, the basics interests of the law
may be satisfied by prosecution of the agent of unlawful force; in the latter circumstance, if the
actor is excused, no one is subject to the law’s application. WE WANT SOMEBODY TO
BLAME

XX. INTOXICATION
A. Involuntary Intoxication
267 Requires coercion, mistake, pathological intoxication, or unexpectedly intoxicated by
prescribed drug
268 Lack of mens rea: Defense if as the result of involuntary intoxication, the actor lacked the
requisite mental state of the offense for which he was charged.
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269 “Temporary insanity”: same definition as insanity but triggering condition is the involuntary
intoxication, rather than a mental disease or defect
a) Depends on level of incapacity brought by drug
B. Voluntary Intoxication
270 Common Law: NO DEFENSE UNLESS IT IS A SPECIFIC INTENT CRIME
a) No defense for assault (mitigating circumstance)
271 MPC 2.08(2) Voluntary intoxication will exculpate the defendant if it negates any element of
the offense
272 If a person is charged with a crime of recklessness, he cannot avoid conviction by proving that,
because of his intoxication, he was unaware of the riskiness of his conduct MPC 2.08(2)
a) [i.e. MAY GET FOR MANSLAUGHTER]
273 Mental illness from long-term abuse of intoxicants may be an excuse under insanity
274 Alcoholism and Drug Addiction are voluntary for purposes of intoxication defense
a) United States v. Lyons (890) FACTS: Insanity defense to possession, based on addiction to
drugs HELD: 1) Narcotics addiction, standing alone without other physiological or
psychological involvement, raises no issue of a mental defect or disease as can serve as a
basis for the insanity defense 2) the volitional prong in Blake – a lack of capacity to
conform one’s conduct to the requirements of the law – does not comport with current
medical and scientific knowledge

XXI. INSANITY
A. Justification for Insanity Defense
275 Deterrence: It is useless to punish the insane because they cannot be deterred.
276 Response: Punishment can still be used to deter others. Counter-Response: Less deterrence
because only get others and not the insane.
277 Criminal Justice: Put him away for social protection because he is dangerous to others and
himself. NOTE: confinement in a mental institution is usually longer than confinement in a
prison
278 MPC Commentaries: The insanity defense is in fact infrequently invoked and then only for
very serious crimes. When it has been invoked, jurors have not shown themselves ready to
accept attenuated claims. Those who do successfully claim the defense are often committed for
long periods of time.
B. The M’Naghten Test - Cognitive
279 M’Naghten Case (879) FACTS: Kills secretary to the prime minister, while aiming at the actual
prime minister, saying that the tories follow him around and persecute him everywhere he goes,
and destroyed his peace of mind HELD: 1) To establish a defense on the ground of insanity, it
must be clearly proved that, at the time of the commission of the act, the party accused was
laboring under such a defect of reason, from disease of the mind, as not (a) to know the nature
and quality of the act he was doing; OR, (b) if he did not know it, that he did not know he was
doing what was wrong 2) TEST IS WHETHER HE KNOWS THAT WHAT HE IS DOING
WAS WRONG – MORALLY WRONG
a) Voices in the Head or Divine Right of God
280 Criticism as outmoded and focusing exclusively on cognitive aspect
281 State v. Crenshaw (905) FACTS: Man kills his wife b/c he thinks she is unfaithful, claims it
was his duty under Moscovite faith HELD: 1) it is the society’s morals, and not the individual’s
morals, that are the standard for judging moral wrong under M’Naghten 2) His personal belief
that it was his duty to kill his wife for her alleged infidelity cannot serve to exculpate him from
legal responsibility for his acts
282 State v. Green (896) FACTS: Homeless guy claims that “ousiograph” is beaming a radio waive
at him to destroy his mind, suffers from classic paranoid schizophrenia, kills a police officer in
the park HELD: 1) After D presented evidence from nurse, BOP fell on state to prove (a) that at
the time of the offense the defendant was not suffering from mental disease or defect; OR (b) if
he was, that his illness was not such as to prevent him from knowing the wrongfulness of his
conduct and from conforming his conduct to the requirements of the law 2) State failed to
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burden of establishing sanity

C. Model Penal Code 4.01
283 After the attempted assassination of President Reagan in 1981, b Mr. Hinckley, public sentiment
turned against all versions of the insanity excuse, and most particularly against the MPC test,
which was perceived to be the most lenient
284 MPC 4.01 A person is not responsible for her conduct if, at the time of the criminal act, as the
result of a mental disease or defect, she lacked the substantial capacity: (1) to appreciate the
criminality (wrongfulness) of her actions; or (2) to conform her conduct to the dictates of the
law
D. Burden of Proof
285 Constitutional Law: Ordianrily, “sanity” is not an element of a crime. Therefore, it is
constitutional for the legislature to place the burden of proof on the defendant to show that he
was insane at the time of the crime. Supreme Court upheld a statute that required D to prove her
sanity beyond a reasonable doubt
286 Federal: BOP on D for clear and convincing evidence

DIMINISHED CAPACITY
You are a little bit impaired, still recognize the wrongfulness, may get the reckless level of the crime, but not
for the higher level purpose or knowledge levels of the crime
Are the courts able to do this on their own? It is somewhat of a compromise, some legislatures officially
recognize, but larger a judicial creation.
Diminished capacity is not in the MPC