Outline – Criminal Law

NB: the only crimes we have looked at are sex crimes and homicide. Therefore, know the ins
and outs of these, and know defenses and conditions/tests for attempt. That is the final (except
for perhaps statutory interpretation and some policy issue – retributive vs. utilitarian).

I. Intro to Criminal Law

A. Sources
1. modern penal code (MPC)
2. common law (CL)
a. know which crimes prosecuted under what
b. know differences in analysis between both forms
B. Elements of a crime
1. mens rea (MR)
2. actus reus (AR)
3. causation: did my acts combined w/mental state combine to result in social
harm actual and proximate causes
4. social harm
a. all four elements should occur about the same time
C. Trial Process
1. Sixth Amendment guarantees that "in all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial jury."
2. Steps for prosecuting a felony
a. felonious crime committed
b. arrest (made with probable cause)
c. complaint
d. arraignment
e. preliminary hearing/grand jury indictment
f. motions
g. trial
h. sentencing
D. Punishment theories (understand basics for policy argument questions)
1. Utilitarian
a. General deterrence
b. Specific deterrence
c. Isolation
d. Reform
2. Retributive
3. Proportionality: Need it be considered?

Owens v. State: Owens convicted of drunk driving but police never saw him
driving only parked. Circumstantial convictions allowed to stand circumstances
were "inconsistent with any reasonable hypothesis of innocence."
 State v. Ragland: Affirmed that while jury nullification is a power of juries, it is
not a right under the Sixth Amendment and so no need to instruct juries that they
have this power.

Coker v. Georgia: US Supreme Court held that death was disproportionate and
therefore unconstitutional punishment for rape under the "cruel and unusual"
clause of the 8th Amendment. Decision justified by rape not as serious as murder
and no other states had such a punishment.

Harmelin v. Michigan: US Supreme Court upheld mandatory life sentence for

drug possession deciding that the 8th Amend does not require strict
proportionality, but rather it only forbids extreme sentences that are "grossly
disproportionate."

United States v. Jackson: Jackson released from prison and that same day robs a
bank. Apprehended with a weapon and sentenced to life under a statute requiring
recidivist felons caught with weapons to serve mandatory life. Upheld because
statute [enacted by the people through legislature] "reflects judgment that career
criminals possessing weapons should be dealt with severely."

E. Statutory Requirments and the Principle of Legality

1. Nothing can be considered a crime without a pre-existing law
a. Law-making power should not be delegated to anyone who is a member
of the judicial hierarchy (i.e., legislatures make laws)
2. Statutes cannot be vague or overbroad or else they are void
3. "Strict construction" (aka rule of lenity) which requires that judicial resolution
of uncertainty in penal statutes should be biased in favor of the accused.

Keeler v. Superior Court of CA: Keeler willfully kneed his adulterous wife in her
pregnant belly causing the termination of a viable fetus living inside of her. Court
held that because CA's murder statute did not define "human being" and because
historical context and common law precedent seemed to show fetuses were not
considered human beings in 1872 when code was written, Keeler could not be
tried on murder (i.e., the unlawful killing of a human being, with malice
aforethought). Court cannot unforeseeably enlarge statute, for this would be the
same as ex post facto law. Dissent: Argues that statutory language is not frozen
in time but must be fairly and reasonably interpreted by the court to carry out the
justice intended in the statute. [NB: Statute amended to include fetuses.]

II. Actus Reus

A. This is the physical or external aspect of a crime.
B. Elements
1. conduct (voluntary act)
2. Causation
3. Harmful result
Some offenses punish the result (murder); some punish the act (drunk
 driving when no one is hurt). Conduct crimes vs. result crimes.
NB: "attempt" turns result crimes into conduct crimes
C. Voluntary Acts
1. Person must voluntarily commit act deemed criminal
2. Voluntary act objectively demonstrates willful intent (i.e., mens rea)

Martin v. State: Police dragged Martin, already drunk, from his house onto a
public road and charged him with public intoxication. Appeals court overturned
conviction on grounds that appearance in public was not voluntary, as required in
statute.

State v. Utter: Appeals court held that, although facts insufficient to warrant
reversal, principle that an involuntary act or spasm resulting in criminal harm
removes culpability from D is valid, unless D placed himself in unconscious state
voluntarily (such as use of drugs).

D. Possession
1. A plants drugs in B’s purse to avoid detection during an airport security search.
2. How would MPC deal with a prosecution of B for possession of drugs?
MPC 2.01(4) – possession defined - (4) Possession is an act, within the meaning
of this Section, if the possessor knowingly procured or received the thing
possessed or was aware of his control thereof for a sufficient period to have been
able to terminate his possession.

E. Omissions and Resultant Guilt?

5 Ways one can be criminally liable for omissions
1. Statute imposes duty
2. Certain status relationship with another
3. Assumed a contractual duty of care for another
4. One has voluntarily assumed the care of another and so secluded the
helpless person as to prevent others from rendering aid
5. Person creates a risk of harm to another

People v. Beardsley: D accused of not properly caring for an adult (over 30)
woman who became voluntarily drunk and intoxicated on morphine and later
died. D and woman had spent several days carousing together. D convicted of
manslaughter. Appeals court reversed stating that D had no legal duty to a woman
who was not his wife . D's act may be moral reprehensible, but it is not criminal.

Barber v. Superior Court, CA: Can two medical doctors be charged with
unlawful killing (i.e., murder) by removing life support systems from a patient
who, though in a vegetative state, maintains minor brain function? The removal
of life support is not an act, but rather an omission of care (or heroic measures)
and therefore there is no actus reus for homicide. This raises another issue: did
doctors have a duty to continue to provide life sustaining treatment? The duty is
removed once it is clear that such treatment is futile [i.e., no longer proportional]
 in that it doesn't sustain a life while the pathology is diagnosed, for the pathology
is too severe, in this case, to be cured.

III. Mens Rea

A. Nature of Mens Rea
1. Definition difficult. Some broad attempts (p.132n1):
a. Culpability (common law)
i. guilty mind; vicious will; morally culpable state of mind

Regina v. Cunningham: generalized evil mental state is not enough, the MR must
be related to act committed.

b. Elemental (narrower def; statutory)

i. does mens rea meet the requirements of the statutory language?
Typically defining a type of intent.
ii. look at MR at the moment of the act
B. General Issues in Proving Culpability
1. Intent
a. Normally both the conscious object of actor as well as anything he is
virtually certain will occur.
2. Proof of Intent
a. Can therefore be inferred (but not presumed) that a person ordinarily
intends the foreseeable consequences of his acts.

People v. Conley: court, having proven facts of vicious battery, able to infer that
D intended to cause "permanent disability" (statutory language) based on the
viciousness of the attack, including lack of warning given to victim.

b. Transferred intent applicable to crimes (predominantly in homicides).

i. only applicable if resultant crime causes same level of social
harm as intended crime (must have MR and AR)
3. Specific vs. General Intent (140n6; intent, 138-141)
a. Specific intent
i. intend to do something more than the act (e.g., break into house
with intent to commit a felony therein)
b. General intent
i. act itself is enough
4. Model Penal Code §2.02 and mens rea (141-145)
a. MPC requires prosecutor to prove particular mens rea for each crime,
not just a morally blameworthy manner
b. MPC abandons countless common law mens rea terms and replaces
them with four:
i. Purposely
a. intends to cause a result
ii. Knowingly
a. knows behavior almost certain to cause result
 iii. Recklessly
a. consciously disregards a substantial and unjustifiable risk
b. a gross deviation from law-abiding standard of conduct
iv. Negligently
a. should be aware of a substantial and unjustifiable risk
b. the lack of awareness is a gross deviation from
reasonable standard of care
c. One of these levels of culpability must be proved with respect to each
"material element" of the offense, namely,
i. the nature of the forbidden conduct
ii. the attendant circumstances
iii. the result of conduct
5. "Knowledge" of Attendant Circumstances
a. Att. Cir. are simply facts that occur with the crime and there is no need
to prove a mens rea with respect to them, just that they existed.
i. If it is deemed a material element, then a mens rea applies.
b. MPC defines recklessly and knowingly in similar ways. In effect,
recklessness is a refusal to confirm a suspicion, or a knowledge that once
other knowledge is known, you won't like that knowledge! This is termed,
"willful blindness" (§2.02(7)); deliberate effort to avoid learning the truth.
State v. Nations: By MO statute, a person can only endanger a
child "knowingly". In this case, the D had not yet ascertained a
child's age when she let her dance scantily clad on a stage. State
argued that age of child was only attendant circumstance.
According to MO code, knowing requires actual knowledge of a
fact, not refusal to find out. Held: D guilty of recklessness, but
not knowingly endangering a child and so, by statute, she is guilty
of nothing at all.
6. Problems in Statutory Interpretation
a. MPC address it in §2.02(4): when words unclear, they apply to entire
statute unless explicitly stated otherwise.
C. Strict Liability Offenses
1. Exclusion of mens rea requirement from "public-welfare offenses"
a. criminal liability attaches without regard to fault if conduct involves,
i. minor violations of liquor laws, pure food laws, motor vehicle
and traffic regs, building and factory laws
ii. court typically refuses to hold felony convictions to a strict
liability standard

Staples v. US: Court argues that punishment too severe for a strict
liability offense. So many people own guns innocently, that to
criminalize their behavior strictly would trap a lot of people who
would be unaware of the law. Court argues that as mens rea is
traditional in our law, it should be assumed. Rules: mens rea is
firmly entrenched in American law; mens rea is the rule not the
 exception; severe punishment is inconsistent with regulatory
matters.

b. statutory rape is the only major crime ascribed strict liability

Garnett v. State
2. MPC generally rejects strict liability (§2.05).
3. Typical criticisms of strict liability
a. does not deter since actor is unaware of the facts that render his conduct
dangerous
b. unjust to condemn a person who is not morally culpable
D. Mistake and Mens Rea
1. Mistake of Fact
a. Common law mistake is complex due to elemental/culpability issues
and general/specific intent
b. Mistake of fact (e.g., believing property to be yours) is not an excuse in
general intent crimes. In specific intent crimes, where a felonious belief
must be proved, then it is.
i. see People v. Navarro: erroneous belief, even if unreasonable
may be considered by jury as excuse
ii. negligence is not applicable to specific intent crimes
c. "moral wrong" doctrine – minority of jurisdictions
i. if mistake of fact occurred, then if jury holds that were the
mistake true, the act was still "immoral," then D is convicted
(176n5; cf. dissent in Garnett)
d. "legal wrong" doctrine
i. if act based on mistake is still "illegal," then D may be convicted
of the more serious offense of which he is factually guilty (177n6)
2. Mistake (or ignorance) of Law
a. defense rarely permitted.
i. strict liability statutes: even a reasonable belief not permitted as
excuse
People v. Marrero (1987): After final appeal, D was not
allowed to claim that he misunderstood the statutory
definition of peace officer (which led to his conviction of
carrying an unlicensed firearm) and claim excuse under
NY's "mistake of law" statute. D's conviction upheld
because the statute he violated was a strict liability statute
and therefore "mistake", even a reasonable one, is not an
excuse when there is no mens rea specified by a statute.
ii. specific intent (i.e., mens rea requirement) even an unreasonable
belief permitted to be given as excuse (though jury can disregard)
Cheek v. US: anti-tax crusader
IV. Causation
A. Actual cause (cause-in-fact)
1. "But for" test: a D's conduct is a cause-in-fact if the said result would not have
occurred "but for" the D's conduct
 i. Oxendine: he beat kid but did not inflict mortal injury, therefore, his
beating is not a but-for cause (would be if could be proven he accelerated
death)
2. Concurrent and contributory but-fors
i. acts together cause the criminal harm, but neither alone would have
3. Substantial factor test (rarely used to replace "but for" test): when acts of two
D's would each alone be sufficient to result in the harm; both can be found guilty
this way
4. Proximate cause req: even if D's act is cause-in-fact, courts won't impose
liability where:
a. prohibited result of D's conduct is beyond scope of any fair assessment
of the danger created by D's conduct
b. where it would otherwise be unjust based on fairness and policy
considerations
B. Proximate Cause ("Legal" Cause)
1. Cannot be a proximate cause without being an actual cause [but] Can be
an actual cause without being the proximate cause
2. Intervening force
a. but-for causal agent comes into play after D's act or omission, and
before the social harm occurs
i. act of God
ii. 3rd party that accelerates or aggravates the harm caused by D
iii. act or omission of victim that assists in bringing about the
outcome
b. coincidental/independent
i. happens without any cause from D
ii. breaks chain of causation unless foreseeable by D
Kibbe v. Henderson: it is foreseeable to a reasonable that a
drunk left by the side of the road might wander into it and
be hit by a car
c. responsive/dependent
i. D is somehow responsible for bringing about this act
ii. breaks the chain of causation only if abnormal
d. MPC § 2.03
i. merely a proximate cause req: "actual result not too remote or
accidental in its occurrence to have a just bearing on D's liability"
C. Intended Consequences (common law)
3. "Apparent safety" (common law)
a. when a person reaches a position of safety, original wrongdoer is no
longer responsible for ensuing harm

V. Criminal Homicide

Common Law MPC

Murder: (killing with "malice aforethought") Murder: - intent to kill
- premed/deliberate - intent to do serious bodily injury
 - intentional - depraved heart/reckless indifference
- depraved heart - (felony murder)
- felony murder Vol Manslaughter: - reckless
Manslaughter: (kill w/o "malice aforethought") - EED
- voluntary Negligent Homicide: - Gross negligence
- involuntary

Four types of murder:

intent to kill
intent to cause serious bodily injury that results in death
callous indifference to human life (depraved heart; extreme recklessness)
felony murder

A. Common law origins

1. unlawful killing of human being with "malice aforethought"
2. definition of "malice aforethought"
i. intent to kill
ii. intent to cause grievous bodily harm
iii. depraved-heart murder (wanton, willful disregard of risk to human life)
iv. murder committed during another felony
3. manslaughter was homicide without malice aforethought or without
justification or excuse
B. MPC §210
C. Intentional Killings – Degrees
1. Deliberation-Premeditation Formula
2. Manslaughter: "Heat of Passion" (HOP) Killings
a. Common Law Principles
i. a partial "justification" that mitigates murder down
1. requires "adequate provocation to inflame passion of a
reasonable man" due to unlawful conduct by provoker;
typically words are not enough
a. Rule of Provocation (tested objectively)
i. adequate provocation
ii. heat of passion
iii. sudden heat – no time to cool
iv. causal connection between provocation,
passion, and factual act
2. "misdirected retaliation rule" – must kill the provoker for
mitigation, other wise it's murder (247)
iii. under common law, court took it out of jury's hands to mitigate
down to manslaughter, applying some specific standard (241)
1. catching spouse in act of adultery
2. mutual combat
3. assault and battery
b. The CL Objective Standard: Who is the Reasonable Man?
i. Provocation thus requires a dual test:
 1. provocation sufficient to cause particular D to lose self-
control
2. might cause a reasonable man to act in the manner that
D did
ii. Camplin court defines a reasonable man:
1. either sex
2. normal powers of self-control
3. was level of response merited by gravity of provocation?
c. MPC and beyond (mainly subjective)
i. MPC uses the "extreme emotional distress" (EED) standard,
which is much broader than the HOP standard
1. no need for immediate, unthinking reaction
2. takes into account D's subjective outlook re:
a. was D provoked?
b. was provocation adequate?
c. response of D is sub/ob hybrid: Is D's subjective
perception one that, if a reasonable man had it,
would lead to the same action?
D. Unintentional Killings: Unjustified Risk-Taking
1. Common law
a. CA: "abandoned and malignant heart"; "implied malice"
b. Utah: "depraved indifference, i.e., callous to value of human life and
utter indifference as to whether one's conduct will create the requisite risk
of death"
c. intent to cause grievous bodily harm resulting in unintended death is
murder with malice aforethought under CL
2. MPC
a. Recklessness, §2.02(2)(c)
i. "conscious disregard of a substantial and unjustifiable risk"
b. Accords no special significance to an intent to cause grievous bodily
harm but rather treats such cases under the extreme recklessnss and
recklessness standards
c. Negligence is for criminal law an "objective" standard in that behavior
is compared to that expected of a reasonable person in similar
circumstances
3. Negligence
a. Policy issues discussed (pp. 280-282)
E. Unintentional Killings: Unlawful Conduct
1. Felony-Murder Rule (CL)
a. the doctrine in its unlimited form
i. a felony + a killing = a murder
ii. in effect, once there is a felony, the killing becomes a murder as
a strict liability offense
iii. also applies in commission or attempted commission of felony
1. e.g., 13 yr old girl jumps out of moving car and dies
because she knows driver wants to have sex with her (308)
b. the policy debate
i. CL originally punished all felonies with death; therefore, felony-
murder rule not much of a stretch
ii. modern rationales (288-291 criticizes them)
1. deterrence: how can we deter an unintended act?
2. transferred intent: mens rea for burglary is not the
same of premeditation for murder
3. retribution and general culpability: punish the "evil
mind"; conflicts with trend of punishing homicide by
degree of culpability
iii. defense of felony murder rule
1. it is a misdemeanor to drive drunk, but if you kill
someone, then it is homicide. The classification system for
these two related offenses "reflects societal notions of
proportionality."
2. it affirms the sanctity of human life via condemnation
3. deterrence: the rule is so simple that it is likely to be
understood by felons
4. promotes conservation of judicial resources normally
needed to determine grade of homicide (i.e., efficiency)
iv. MPC is against the felony-murder rule
c. Limitations on the Rule (not that under traditional CL these exceptions
would not apply; mention that in all essays)
i. The "inherently dangerous felony" limitation
1. if felony not inherently dangerous (either in abstract or in
the particular instant case) then murder rule should not be
applied
2. only apply it in very violent behavior; charge people
with different level of homicide
ii. the "independent felony" (or merger) limitation
1. if underlying felony is a step in the death, then you can't
charge felony-murder
a. Policy: prevents stacking charges against D's;
"ratcheting up" charges.
2. Two part test is merger applies:
a. are the acts that make up the underlying felony an
integral part of death?
b. does the underlying felony exhibit an intent or
goal to accomplish something apart from the
ultimate result of the felony?
iii. "in furtherance" of a felony
1. if death is a coincidence with the crime, then no felony-
murder rule
a. flying a plane transporting drugs; it crashes and
kills one of the occupants = no felony-murder
 2. if it is a direct consequence (i.e., causally related), then
felony-murder.
iv. Agency
1. if death occurs by someone not acting in concert with
Ds, then the Ds cannot be charged with felony murder.
2. if the deaths are not illegal deaths (e.g., justifiable
homicide, self-defense), Ds cannot be charged with felony-
murder (see State v. Bonner)
3. Oxendine (p. 309)
2. The "misdemeanor manslaughter" rule
a. homicide during commission of a non-felony is common law
involuntary manslaughter
b. MPC favors abolishing this rule
F. Capital Murder
1. the Constitutional and Policy Debate
a. MPC §210.6: provides sentencing hearing in which aggravating and
mitigating factors mat be introduced re: death penalty
i. if a single mitigating circumstance exists, then, according to
MPC, death should not be imposed
ii. this came about after the Furman v. Georgia decision requiring
that a statute needed to ensure that the sentencing authority is
given adequate information and guidance
b. death penalty has a long history of acceptance in both England and US,
so this is against declaring it unconstitutional per se
c. Dissent: as societal standards evolve, so much judicial decisions.
Death must be declared unconst. for it treats human beings as things to be
toyed with and discarded and removes their human dignity. (and) "the
notion that retribution can serve as a moral justification for the sanction of
death is highly disturbing.
d. good summary of policy on pp. 324-328
i. deterrence
ii. retribution
iii. risk of executing the innocent
2. Substantive Limitations on the Death Penalty
a. degree of participation in felony is minor (when death imposed
after felony-murder conviction)
b. no intent to kill
c. Tison v. Arizona (good exam review case)
i. actor who is a major participant in a felony, but who has reckless
indifference to human life, nevertheless is eligible for death after a
felony-murder conviction
ii. Dissent: major participation may reveal a mental state, but
should not be used alone to impose death
iii. recklessness is much less culpable than intentional, therefore,
we must punish them differently in order to maintain "the relation
between criminal liability and moral culpability"
VI. Rape
A. Actus Reus
1. Forcible Rape
a. Common law: "carnal knowledge of a woman against her will" + force
Mens Rea: knowingly
-sexual intercourse
-unlawful, not wife
-force, (physical) threats, fraud
Force was identified and determined not as an independent
factor but in relation to the response of the victim, which in
turn implicated the victim's own state of mind (i.e., the
burden of proof is on the victim).
-w/o consent
-against will
-must resist (normally physically)
b. MPC
Mens Rea: as low as Reckless.
-compels by threat
-victim is incompetent
-victim is unaware of the sexual act
c. General principles
i. Rusk v. State
ii. State v. Alston
a. absent evidence of force or threats to overcome will of
victim to resist sex, no rape
b. totality of circumstances must give rise to a reasonable
inference that the unspoken purpose of the threat was to
force the victim to submit to unwanted sex
d. "No" (or absence of "yes") as force?
2. Deceptions and Non-Physical Threats
a. Boro v. Superior Court: fraud to gain consent for sex does not vitiate the
legitimacy of that consent; therefore, no rape.
B. Mens Rea
1. Mistake of Fact
a. if a D entertains a reasonable and bona fide belief that V voluntarily
consented to sex, then he does not possess wrongful intent that is a
prerequisite for rape (majority belief)
C. Proving Rape
1. Rape Shield Laws
a. deny a D right to question complainant re: her prior sexual conduct or
reputation
b. deny D right to present other evidence re: V's prior sexual conduct or
reputation
c. Policy: these laws enacted to prevent character assaults on V that were
prompted by CL assumption that previous unchastity meant woman was
loose and readily consented to sex
 2. Four approaches to rape shield laws
a. Michigan: allows evidence of prior sexual conduct with D or with
others that would explain physical characteristics if judge determines that
it is relevant
b. Texas, federal, California: trial courts can admit reputation evidence on
a case-by-case basis when it seems relevant
3. Constitutional test
a. most rape shield laws pass the Sixth Amend test giving a D the right to
confront his accusers.

VII. General Defenses to Crimes

Def. Defense: "any set of identifiable conditions or circumstances which may prevent a
conviction for an offense"
A. Categories of Defenses
1. Failure of Proof Defenses
a. one or more elements in the definition of the offense cannot be proven
2. Offense Modifications
a. all elements of offense exist, but no social harm or evil that the statute
defining the offense sought to prevent
i. e.g., making a ransom payment to kidnappers to save child is
technically complicity in kidnapping
3. Justifications (self-defense; defense of others; necessity)
a. justification represents a "superior social interest"
b. justification negates the social harm of an offense
4. Excuses (duress; insanity)
b. negates the moral blameworthiness of the actor; but social harm
still exists (all elements of crime satisfied)
5. Nonexculpatory Public Policy Defenses
a. statute of limitations – guilt remains, but for public policy of fostering a
more stable and forward-looking society, crime is ignored after a certain
time period
b. diplomatic immunity, judicial immunity, incompetence, etc
B. Burden of Proof
1. Not unconstitutional to put the burden of production for affirmative defenses
and also the subsequent burden of persuasion on Ds(meanwhile, prosecutor has
burden of production for the elements of the crime)(450n1).
a. obligation of states to define the elements of the crime
b. MPC §1.13 recommends that prosecution carry the burden of
disproving any affirmative defense raised1 by D
C. Principles of Justification
1. Structure of Justification Defenses
a. existence of triggering conditions permit a
b. necessary (response to imminent threat) and proportional response to
avert the threat
1
forcing prosecution to disprove all possible affirmative defenses is unreasonable
 i. the necessary and proportional requirements are very important
2. Self-defense
a. CL General principles
i.. def. self-defense (CL)
a. must be an unlawful and imminent threat
b. of death or serious bodily harm and
c. a reasonable belief deadly or severe force only way to
counter the threat and
d. response is proportional
ii. aggressor: cannot normally assert self-defense justification
a. aggressor – one who performs an unlawful act
reasonably calculated to produce an affray leading to
injuries or death (i.e., provokes the incident)
iii. retreat rule: under CL, "retreat to the wall" before use of force
a. rarely applied when D faced with deadly force
iv. castle doctrine: almost universally accepted that one has no
duty to retreat if attacked within one's home
b. MPC §3.04
i. Deadly force not justifiable "if the actor knows that he can avoid
the necessity of using such force with complete safety by
retreating" (MPC §3.04(2)(b)(ii)).
a. otherwise, same as CL (adds, no retreat at work)
c. Policy arguments in favor of self-defense justification
i. public duty
a. prevent any forcible or atrocious crime
ii. moral forfeiture of the right to life
a. by threatening to take a life, one forfeits the right to his
own life
iii. the right to preserve autonomy
a. in this case, the defender kills to preserve his right to life
iv. right to resist unlawful aggression (when State not there – in the
form of police – to do it for you)
v. lesser evils doctrine
b. "Reasonable Belief" Requirement
i. at CL
a. objective defined as a reasonable person in the D's
situation; cf. p. 471
b. info about physical attributes of all actors, D's
knowledge about victim, and D's prior experiences in
similar situations are all relevant to determining what was
objectively reasonable for a man in D's situation to do
1. does this not open the door to allow people's
prejudices to enter the consideration of the
reasonableness of their actions
c. imminent harm req – objective test
d. necessity and proportionality of response – objective test
 ii. MPC §3.04
a. uses a wholly subjective standard, requiring jury to look
only at what D believed the situation to be
b. broader than imminence req: "justifiable when the actor
believes that such force is immediately necessary for the
purpose of protecting oneself"
1. policy: is this wise? letting people set their own
standards for permissible use of force?
c. however, if D formed his belief recklessly or negligently,
then he could be convicted of a homicide with one of these
types of MR
c.. Objective, Subjective, or a Mixed Standard?
(which standard to we apply to 1) imminence, 2) proportionality of
response, and 3) triggering mechanism: for exam)
a. State v. Wanrow
1. what is "reasonably believed" should take into
account how a D's beliefs are affected by his/her
gender, physical size, etc.
2. to what extent do we incorporate the D's
knowledge of the V's past bad acts.
3. no specific triggering mechanism in this case
iii. Battered Woman Syndrome (subjectivity) and Beyond
a. State v. Norman
1. Appeals court: believes battered wife syndrome
and sees it as a justification for killing in self-
defense; no imminence req, says inevitability is
sufficient
2. Supreme court: harm must be imminent2
b. Should imminence be removed?
1. Use excuse (rather than justification) based on
impaired rationality or volition
2. simply permit justification where circumstances
merit removal of imminence req
3. Defense of Others
a. the MPC §3.05 standard
i. a person is justified in the use of force against another if
a. a reasonable person in the actor's position would believe
his intervention to be necessary for the protection of the
third person and
b. in the circumstances as that reasonable person would
believe them to be (subjective), the third person would be
justified in using such force to protect himself
1. i.e., "self-defense" by proxy
c. the force employed must, of course, be proportional
2
the imminence requirement is the only thing that ensures killing in self-defense will be used as
a last resort
 ii. Policy: to prohibit such a justification would increase alienation
of individuals within society from each other
iii. MPC § 3.05 must be interpreted in light of 3.04 and 3.09.
b. "alter ego" rule
i. CL – one is not privileged to defend to a greater degree than the
person himself (i.e., if third person was not privileged to use
resistive force, then anyone who assists him is guilty of a crime)
4. Defense of Property/Habitation
a. deadly force rarely justified to defend mere property; non-deadly force
can be justified to defend property
i. except when life threatened at same time (e.g., armed robbery)
ii. when threat of dispossession from house by felony
b. MPC §3.06 – Deadly force permitted if
i. person attempting dispossession from house
ii. person attempting felonious destruction or theft of property and
has:
a. threatened deadly force vs. actor or
b. without deadly force, actor will be exposed to SBI

CL: protection from any felony; California and MPC merge protection of property with
protection of self except in case of dispossession; Illinois statute is more broad and permits
killing after mere invasion of home.

5. Necessity ("Choice of Evils"): a utilitarian defense (p. 535)

a. General Principles; CL requirements (Primarily an objective standard
defense):
i. D faces choice of evils (created by natural situation; coincidence)
ii. harm is objective and immediate
iii. causal connection between harm and conduct
iv. D chooses the lesser harm (objectively determined); if harm is
equal (e.g., you were faced with death and you took a life), then no
justification
v. no legal alternatives/no legislative (as voice of society at large)
preclusion
vi. situation not self created (used in some courts)
v. Primarily an objective standard defense.
b. MPC §3.02 (p. 530-532)
i. (subjective) actor must believe that his conduct is necessary to
avoid an evil (that is, a causal connection between actor's action
and alleviation of the harm)
ii. (objective) necessity must arise from an attempt to avoid an evil
or harm that is greater than the evil or harm sought to be avoided
by the law defining the offense charged (D chooses lesser harm)
iii. (objective) balancing of evils is not committed to the private
judgment of the actor – a fact-finder will decide
iv. (objective) the particular choice made has not been precluded
 by legislative act (or no legal alternatives exist)
v. necessity will exculpate unless the crime involved can be
committed recklessly or negligently
c. Civil Disobedience: United States v. Schoon
i. Indirect civil disobedience, because it attacks a symbol of harm,
rather than preventing harm itself, can never be subject to
necessity defense
a. legal alternatives (e.g., lobbying) exist to gain what
people want
ii. Direct civil disobedience may be subject to it. If the act
committed may reasonably believe that the action will directly
affect the harm (i.e., a fairly direct causal connection).
d. Necessity as Defense to Murder?
i. No. The only defense to murder is self-defense or defense of a
third person.
ii. MPC §3.02 does not specifically exclude homicide from the
"choice of evils" defense, but leaves it up to courts to elaborate the
limits of the defense
D. Principles of Excuse
1. Why excuse wrongdoers?
a. the law is concerned for the person accused who has not made a
culpable choice to break the law (utilitarian)
i. culpability implies moral criticism; if a person's action does not
deserve criticism, then there should be no culpability
2. Theories underlying excuses
a. Causation (non-utilitarian): a person should not be blamed for conduct if
it was caused by factors outside of his control
i. e.g., mental illness; coercive threat
b. Character: excuses should be recognized in those circumstances in
which bad character cannot be inferred from the offender's wrongful
conduct
i. e.g., rob a bank because someone threatened to kill your kids if
you didn't
ii. problem: so why do we punish people with good character who
make a stupid mistake?
c. "Free Choice" (or Personhood): one can be punished if one entered into
criminal act knowing all facts and punishments for the act
3. Duress
a. General Principles
i. US v. Contento-Pachon: Three elements of duress defense:
1) (sub/ob hybrid) immediate threat of death or SBI
2) well-grounded fear that the threat will be carried out
3) no reasonable opportunity to escape the threatened harm
4) actor was not at fault in exposing himself to the threat
ii. Another formulation:
1) a person unlawfully threatens actor or another person
 with death or serious bodily injury
2) actor was not at fault in exposing himself to the threat
iii. MPC §2.09
1) offender was coerced by use of, or threat of, unlawful
force [not necessarily deadly] against his person or the
person of another [not just close family], and a person of
reasonable firmness in his situation (sub/ob hybrid) would
have been unable to resist [more restrictive mental state;
since society doesn't benefit regardless of the choice, the
choice MUST have been reasonably compelled]
2) no imminence requirement
3) defense unavailable if offender placed himself in the
situation by recklessness or negligence
b. Necessity versus Duress
i. People v. Unger: prison escapee does not fit neatly into either
category; but necessity (choice of evils) appears most applicable.
ii. Policy: society's interests in preventing escapes must, in all but
the most egregious cases, out weigh the interests of the individual
defendant.
iii. Necessity normally arose from some sort of natural factor (a
chance coincidence) whereas duress normally arises from a human
element (gun to head, etc).
iv. Necessity negates AR (i.e., there is no social harm); Duress
negates MR (i.e., actor has no free will for actions).
4. Voluntary (Self-Induced) Intoxication
a. Commonwealth v. Graves: under traditional CL, intoxication was never
an excuse for a crime; modern CL saw intoxication as a mitigating factor
to drop the crime down from specific intent to general intent.
i. that is, voluntary intoxication is relevant to the question of the
capacity of the actor to have possessed the requisite intent of the
crime charged
ii. D can use his drunkenness to prove that he did not have the
requisite MR for the specific intent crime
b. Policy: to permit intoxication to be an excuse, it would open the door to
frauds and perjuries by persons to enable them to escape prosecution
i. an indiv who voluntarily ingests substances that create a loss of
control over his actions, must intend the consequences
c. MPC §2.08
i. intoxication is not a defense unless it negatives an element of the
offense
ii. it does not negative recklessness
iii. intoxication is not mental disease
iv. involuntary intoxication or pathological [grossly excessive]
intoxication is a defense
d. chronic abuse of intoxicants may, however, create a mental disease,
thus permitting an insanity defense
5. Insanity
a. Procedural context
i. Competency to Stand Trial
a. must be able to consult with a lawyer "with a reasonable
degree of rational understanding"
b. concern is only with person's mental state at time of trial,
not at any other moment
c. presumption that you are competent
d. a D must prove incompetence to stand trial by a
preponderance of the evidence
i. if court notes possible lack of competence, then
court can raise the issue sua sponte
ii. Pre-trial Assertion of the Insanity Plea
a. insanity is a defense to the MR, not the AR of the crime
iii. Burden of Proof at Trial
a. insanity is an affirmative defense
b. presumption of sanity
c. most states place the burden of persuasion on the D
i. D must first make a prima facie showing that they
are insane (mention this 1st step)
ii. then evidence must be presented
a. if burden of persuasion is on prosecutor,
then he must show the D is sane
d. burden is normally preponderance of evidence
iv. Post-trial Disposition of Insanity Acquittees
a. NGRI (not guilty by reason of insanity)
i. most states: automatic commitment
b. GBMI (guilty but mentally ill)
i. committed until sane; placed in prison for
remainder of term
v. New Strategy for Civil Commitment
a. repeat sex offender; still viewed as a danger and has
perverted impulses; state puts him in mental hospital
b. Why Excuse the Insane?
i. One who is truly insane cannot be rehabilitated or deterred, and
morally we should not seek retribution against him
ii. A man who cannot reason cannot be subject to blame.
iii. The law of criminal responsibility has its roots in the concept of
free will; when one's free will is impaired, should they be subject
to that law?
c. Five tests for Insanity (State v. Johnson)
-Two prongs: prove a mental defect, and then . . .
-Some test are cognitive, others volitional, others mixed; know which!
-All except federal rule are proved by preponderance of evidence
i. M'Naghten Rule
a. defect of reason, from a disease of the mind, made D not
 know the nature and quality of his act
b. if he did know the nature and quality, then he did not
know it was wrong.
i. criticized because did not recognize degrees of
incapacity (i.e., it's all-or-nothing); requires a high
degree of incapacity
ii. if "know" is interpreted narrowly, insanity
difficult to prove
iii. if "know" is broadly, then insanity easier to
prove
iv. State v. Wilson
a. legally wrong is narrower
b. morally wrong is broader
ii. "Irresistible Impulse" or "Control" Test
a. insane if, at time of offense, loss of control caused by
insane impulse (volitional); know action is wrong
i. criticized for its all-or-nothing nature and
a. if there had been prior resistance to the
impulse, the test would fail – requires total
incapacity
ii. excludes crimes not committed in a fit of rage
iii. Durham or "Product" Test
a. crime would not have occurred but-for (i.e., it was a
product of the) mental disease or defect (no separation of
volitional and cognitive aspects)
i. failed to define disease or defect
ii. abandoned because only needed to show mental
illness; expert witnesses tended to decide the case,
rather than jury
iv. MPC Test, §4.01 (M'Naughten + Impulse test)
a. a person is not responsible for conduct if, at time of
conduct, as a result of mental disease or defect, he lacks
substantial (jury issue) capacity (not all or nothing; not
total incapacity):
i. either to appreciate the criminality
[wrongfulness] of his conduct (cognitive
impairment) [NB, MPC by its language can
recognize either moral or legal wrongs]
ii. or to conform his conduct to the requirements of
the law (volitional impairment)
a. no irresistible impulse req.
v. Federal
a. as a result of severe mental disease or defect, D was
unable to appreciate the nature and quality or the
wrongfulness of his acts (i.e., similar to M'Naghten)
b. D must prove by clear and convincing evidence
 d. M'Naghten and the MPC in Greater Detail
i. Knowing/Appreciating the "Wrongfulness" of One's Actions (the
cognitive requirement): State v. Wilson
a. Public Morality Test: D lacked substantial capacity to
appreciate the wrongfulness of his actions if, at time of act
as a result of mental disease or defect, "he substantially
misperceived reality and harbored a delusional belief that
society, under the circumstances as the defendant honestly
but mistakenly understood them, would not have morally
condemned his actions." (subjective/objective hybrid).
i. this is how court says that MPC should be
interpreted
ii. Role of Expert Witnesses: State v. Green
a.
e. Should Insanity Defense be Abolished?
i. Yes: too many wrongdoers use it to escape punishment
ii. and insanity supposed to remove stigma of criminal conviction?
is not insanity a stigma? convictions should simply be a
determination of dangerousness to which community must respond
iii. traditional policy argument against maintaining (634)
iv. No: it is rarely used and even more rarely successful
6. Diminished Capacity (many jurisdictions removing this)
a. permits D to introduce evidence of mental abnormality at trial
i. either to negate a mental element of the charge (MR variant)3
a. thereby exonerating D
ii. or to reduce the degree of the crime for which D may be
convicted, even if conduct satisfied all other reqs of higher charge
(partial responsibility); a form of insanity defense (643)
b. State v. Wilcox
i. diminished capacity most useful in jurisdictions that use the strict
M'Naghten rule
ii. where M'Naghten is abandoned or broadened, not as helpful
iii. still, court holds that it is too subjective and does not draw a
bright line the way the insanity defense does (647)
a. also, if Dim Cap retained, people could be in jail for a
really short time, when they "deserved" to be in their for
life
b. allows holes in sentencing
c. MPC § 4.02
i. permits introduction of mental disease or defect evidence
whenever it is relevant to prove or disprove the existence of any
mental state.
ii. recognizes partial responsibility variant
a. e.g., extreme emotional distress

3
NB: Some say that this should not be considered a form of insanity defense, but is rather simply a D asserting his
constitutional right to present evidence to deny certain elements of the crime; in this case, the MR requirement (642)
VIII. Inchoate Offenses
Spectrum of criminal offenses:
solicitation  conspiracy  attempt  substantive crime

A. Overview
1. MPC §5: deals with inchoate crimes of attempt, solicitation and conspiracy
B. Attempt
1. A person is guilty of attempt by MPC if, acting with the MR otherwise required
for commission of the crime, he:
a. purposefully engages in conduct that would be a crime if attendant
circumstances were as he believes them to be or
b. assumes that the crime will be fulfilled even if he does nothing else or
c. performs act or omission that is a substantial step in the course of
conduct planned to culminate in his commission of a crime
2. Forms of attempt:
a. incomplete: only some elements of crime realized before interrupted
b. complete: all elements realized but unintended result (e.g., shoot gun at
person, but bullet misses)
3. Merger operates
a. i.e., cannot be convicted of attempt if offense was completed
b. however, attempt is deemed a lesser, included offense
4. Policy: attempt probably offers little specific deterrence, but it does permit law
enforcement officers to intervene before an individual can commit a completed
offense
5. MPC §5.05 – Grading inchoate crimes
a. holds that except where completed offense is punished by death, attempt
should receive the same punishment as completed offense
6. Components of Attempt:
a. Mens Rea: (as with all inchoate crimes, specific intent; purposeful is
req'd)
i. MPC: have same level of culpability as completed crime and
1. take a substantial step to completion: tests

2. engage in conduct that would be a crime if circumstances

were as actor believed them to be
3. Causing a particular result is an element of the crime,
and actor does or omits something with purpose or belief it
will cause that result
ii. CL - must have highest level of intent for a conviction of
attempt
1. e.g., attempted murder can only be successful if the MR
was intent to kill (not reckless)
2. Ensures that only obviously culpable receive this high
punishment
iii. MR: can be stretched into several steps
 1) conception of crime
2) evaluating idea
3) taking concrete steps toward actualizing crime; plan
b. Actus Reus
i. AR: when does this attach?
1) discuss with 3rd party: no
1) preparations: no
2) substantial step
3) 1st step (e.g., walk into the bank)
4) penultimate step (still not completed attempt)
5) courts have held that an appreciable fragment of the
crime must have been committed and would be completed
if not interrupted by circumstances independent of the
attempter
ii. preparation vs. perpetration (713n5); mere preparation is not
enough: CL tests (see 716-717 for examples)
1. physical proximity4 test
i. overt act must be proximate to completed crime or
directly tending toward completion of crime or
amounts to commencement of consumation
2. dangerous proximity
i. the greater the gravity and probability of the
offense, and the nearer the act to the crime, stronger
the case for calling it attempt
3. indispensable element test
i. emphasizes any indispensable aspect of the
criminal endeavor over which the actor has not yet
acquired control
ii. if involving a conspiracy, one member cannot be
guilty of attempt until the other performs his part of
the crime5 (see Peaslee)
4. probable desistance test
i. conduct is attempt if, in ordinary/natural course of
events, it will result in the crime intended
ii. would go ahead with criminal conduct, but-for
the intervention of another force
5. abnormal step test
i. conduct goes beyond the point where a normal
citizen would think better of his conduct and desist
6. res ipsa loquitur/unequivocality test
i. conduct manifests an actor's intent to commit a
crime

4
how close in space and/or time you are to final overt act of the crime
5
Attempt is a derivative offense (i.e., everyone has to attempt to get to his portion of the crime. Under accomplice,
however, he would probably be guilty of something.
 ii. this is the most generous of the tests (e.g., acts
that would be attempt in MPC are not attempt under
this test; cf McCloskey)
iii. act that constitute AR must be intentionally performed (i.e.,
there must be specific intent to qualify as attempt)
1. can an omission constitute AR for attempt?
a. Under MPC 1.13(5) "omission" can equal
conduct, therefore, under 5.01(1)(b) omission can
be corroborative of a criminal purpose.
iv. MPC: substantial step6 tests
a. possession of materials to commit crime and can
serve no lawful purpose
b. possession at or near place of commission that
can serve no lawful purpose
c. lying in wait; searching for victim
d. enticing or seeking to entice victim to intended
spot of commission
e. reconnoitering the place contemplated for
commission of crime
f. unlawful entry into place where contemplated to
commit crime
g. soliciting an innocent agent to engage in conduct
constituting an element of the crime
v. CL vs. MPC tests
1. proximity tests focus on what remains to be done
2. substantial step tests focus on what has already been
done
i. this tends to extend liability for attempt
ii. does not impose liability for remote preparatory
acts
7. Special Defenses to Attempt
a. Impossibility at CL (US v. Thomas)
i. circumstances beyond accused's control make it legally
impossible to commit a crime, there can be no attempt to commit
the substantive offense
e.g., no victim in being; i.e., woman dead, so can't rape her
even if penetration [no SH]
however
ii. a physical impossibility unknown to accused rendering the
accomplishment of crime impossible retains criminal attempt
(impossibility in fact) [punishable as attempt in majority of
jurisdictions]
e.g., can't get it up, so no rape possible [no complete AR]
iii. MPC does not permit this defense (§5.01(1)(a))
a. however, if actor thinks he violated law, but no such law
6
"strongly corroborative" of the commission of crime (see circumstances listed in outline)
 exists, he can't be convicted merely for his faulty "criminal"
intent = pure legal impossibility (750n7)
b. Abandonment at CL and MPC (McCloskey)
i. cannot have begun commission of crime
ii. must voluntarily abandon course toward crime
1. MPC §5.01(4) codifies this: "it is an affirmative defense
that actor abandon his effort to commit the crime under
circumstances manifesting a complete and voluntary
renunciation of criminal purpose"
2. renunciation cannot be from fear of being captured or
motivation from external circumstances
iii. only applies to incomplete offenses [?]
1. if SH has resulted before target offense is completed,
then we may refuse to apply abandonment (755n2)
iv. cannot renunciate a completed attempt; but MPC permits
raising of the defense until the point of the penultimate step of
attempting the target offense
C. Assault
1. CL – attempt, coupled with present ability7, to commit battery; later included
mere menacing (without present ability to inflict harm)
a. battery: use of force to cause injury to another
2. MPC §211.1
-omits requirement of present ability to succeed; brings assault into the
same standard of attempt (NB: must have a substantial step present)
-no such thing as attempted assault under MPC
a. Simple assault
i. intentional/reckless infliction of bodily harm or
ii. negligent infliction of harm w/deadly weapon or
iii. put another in fear of imminent SBI
b. Aggravated Assault
i. intentional/reckless infliction of infliction of injury with extreme
indifference to value of human life8
ii. intentional attempt to cause injury to another with a deadly
weapon
c. Reckless endangerment
i. recklessly engages in conduct that may or does place others in
danger of death or SBI
3. No such thing as attempted assault, for assault is an attempt
D. Solicitation
1. CL -asking, enticing, inducing, or counseling of another to commit a specific
crime or specific type of crime
i. aka, an attempt to conspire
ii. solicitation must actually be communicated to other person

7
e.g., Under CL, pointing an unloaded gun an pulling trigger is not assault, but can be attempted murder. Assault is
much stricter and requires present ability to inflict harm; attempt is easier to prove.
8
group all crimes based on "value of human life"; depraved indifference, etc into groups
 2. MR is purposeful, i.e., specific intent
2. AR is the communication (AR and MR prove each other; circular)
3. MPC §5.02
i. solicitation merges with the latter offense if it is committed or
attempted
ii. permits conviction for solicitation even when D does not complete the
communication, but his conduct was designed to effect such a
communication
iii. abandonment is an affirmative defense to solicitation
iv. solicitation punished at same level as target crime
4. know distinction on 763n4

good review problem, 764n7

E. Conspiracy: an agreement between two or more persons express or implied to do

either an unlawful act or a lawful act by unlawful means; MPC § 5.03 is the same except
it requires an overt act in furtherance of the agreement
1. Mens Rea
a. two-fold, bifurcated specific intent required
i. intent to combine with others
ii. intent to accomplish the illegal objective
b. intent must be express, not implied (779)
c. mere knowledge of another's criminal acts is not the same as purpose or
intent to form an agreement
d. attendant circumstances (e.g., if crime is "conspiracy to assault a police
officer," do the accused need to know it was a cop and not just some
random guy?)
e. by the Pinkerton doctrine (769), one is liable for all substantive offenses
carried out by fellow conspirators in furtherance of the conspiracy and
reasonably foreseeable until one takes an "affirmative action" to
withdraw from the conspiracy
i. this CL doctrine makes minor participants guilty
ii. MPC disfavors punishing minor parties
f. establishing an agreement
i. show a tacit, mutual understanding to accomplish unlawful act
g. MPC §5.03
i. bifurcated specific intent
2. Actus Reus
a. the crime is complete upon formation of the agreement
i. at CL - does not even require a substantial step toward attempt to
convict, but often need it to prove at trial
ii. agreement can be tacit (look at circumstances; i.e.,
circumstantial evidence)
a. present at scene
b. relationship with perpetrators
c. with perps before and after
 d. knowledge of commission of the crime
iii. some courts hold that the agreement can occur as the criminal
act begins in process (Azim); while others hold that there must be a
clear agreement before the criminal act begins (Cook)
b. completed offense is a separate crime
i. conspiracy does not merge with substantive crime when
conspiracy is on-going (let's rob banks together)
1. exception under MPC 1.07(1)(b): if conspiracy for a
single crime, then it merges
c. MPC
i. requires an overt act (much less than substantial step; and often
less than basic preparation)
1. exception: no overt act req'd for conviction when target
crime is a first or second degree felony (i.e., when you have
a serious crime)
ii. punished at same level as target offense
d. general considerations
i. aiding and abetting is not the same as conspiracy
1. key: was there prior planning?
ii. conspiracy often proved by circumstantial evidence
1. association of alleged conspirators
2. knowledge of commission of crime
3. presence at scene of crime
4. participation in object of conpriacy

3. Bilateral or Unilateral?
a. bilateral: two or more people must actually agree to participate (a
feigned agreement is not sufficient AR)
i. if all alleged conspirators are tried in a single trial and only one
is convicted, then the charge cannot stand
b. unilateral: a single person intends to agree to a conspiracy and is thus
guilty regardless if his agreement is reciprocated
i. unilateral conspiracy is similar to solicitation
ii. MPC uses unilateral theory
c. courts disagree over which to apply
i. issue normally arises when one of the parties is an undercover
agent who has no intention of truly agreeing
1. policy: we should permit the unilateral theory because it
is a way to get dangerous, antisocial people off the streets
4. Scope of an Agreement: Party and Object Dimensions
a. can be a member of conspiracy even if:
i. identities of fellow conspirators unknown and
ii. not aware of details of the plan of operation
b. chain conspiracies9

9
usually involve distribution of narcotics or other contraband in which there is successive communication or
cooperation
 i. inference of agreement easier here
ii. everyone has a community of interest in that
1. the success of one member's part is dependent upon
success of the whole enterprise
2. therefore, lack of communication or contact between the
members is not a bar to conviction
c. wheel conspiracy
i. there exists a hub, or common source of conspiracy who
ii. deals individually with different persons ("spokes") who do not
know each other
iii. inference is more difficult because the spokes are less likely to
have a community of interest or a reason to know of each other's
existence because each spoke's success not dependent on other
spokes
iv. community of interest test (to show an overarching
conspiracy; not just a bunch of individual conspiracies to which the
hub is party)
1. each spoke knows that the other spokes exists
2. each spoke realize that all spokes together have a
community of interest
d. ongoing conspiracy
i. when a groups of people commits various illegal acts over
time, so long as they are in furtherance of an original goal, there
can be only one count of conspiracy against them
ii. this can be overridden by statutes addressing conspiracies to
commit specific illegal acts (814n1)
e. MPC
i. knowledge that a co-conspirator has conspired with other, even
unknown parties, to commit the same crime10 makes D guilty of
conspiracy with those other parties
ii. multiple crimes: only implicate a single conspiracy charge if:
1. the crimes are object of the same agreement or
2. a continuous conspiratorial agreement
5. Defenses
a. abandonment is an affirmative defense
i. if withdrawal is complete and voluntary and accomplished
before
commission of an overt act
1. i.e., conspiracy is complete upon the commission of the
overt act
2. if withdrawal done after the overt act, then D is guilty of
conspiracy, but has no liability for future acts committed by
the remaining conspirators
ii. MPC §5.03(6)
1. renunciation is an affirmative defense if such
10
NB: under CL, it can be any number of crimes; MPC is the SAME crime
 renunciation thwarted the success of the conspiracy
b. Wharton's Rule
i. where substantive crime is defined as requiring more than one
person, a prosecution for the substantive offense rather than a
conspiracy must be brought
1. e.g., adultery, incest, bigamy, dueling
2. policy: as Wharton's Rule normally applied to
offenses not likely to harm anyone outside of the two
participants, it is not necessary to apply it to crimes
designed to harm larger numbers (e.g., gambling statute)
ii. third-party exception: when more people than necessary are
present to commit the crime, then conspiracy may be charged
iii. exception: no conspiracy where legislature intended only to
punish one of the parties for the crime (e.g., 820ff)
iv. modern courts
1. Wharton's Rule is merely a presumption rather than a set
rule
2. often permit trial on conspiracy and substantive charge,
but if convicted on the substantive charge, then the
conspiracy charge is dropped
c. MPC § 5.04
i. if one person in alleged conspiracy is immune to prosecution (or
mentally incompetent), this will not bar the other person from
conviction for conspiracy

NB: don't have to be at scene of crime to be convicted as a conspirator

IX. Accomplice liability

accomplice liability: no agreement; just intent for the crime and encouragement

Extra stuff:
Threat B a communication objectively indicating a serious intention to inflict SBI (MR)
B communication is also conveyed for the purpose of furthering some goal through the
use of intimidation (AR)
- must intimidate person to whom threat is directed (see Alkhabaz; Green spent a lot of
time on this)
NB: remember that if statute has a mens rea missing, can be filled in with any level of intent
other than negligence.