Outline: Criminal Law Did the D commit the crime? 1. Actus Reus: Did the D commit the act?

2. Mens Rea: What is the required MR for the crime? What was the Ds MR? 3. Justification/Excuse: Did the D have a J/E that mitigates his culpability? I. Actus Reus: Criminal Liability requires the committing of culpable act cannot be incriminated on thoughts alone a. Voluntary Act (MPC 2.01(1)): i. Semi-Voluntary Acts: Deborah Denno, ii. Newton: Mental Involuntariness: When not self-induced, unconsciousness is a complete defense to a charge of criminal homicide. An Involuntary Act is an act which is done by muscles without any control by the mind (Bratty V. Attorney-General (1963)) iii. Martin: Physical Involuntariness: Martin did not appear in the public place out of his own free will, Court holds that a voluntary appearance is presupposed and overturns his conviction. iv. Decina: Court held that a man who was prone to epileptic seizures and who knew that he was prone to them was criminally negligent for killing persons with his car while having an epileptic seizure. Although having a seizure is something that occurs without the control of the mind Decina knew of the risk and consciously operated the car despite that risk (Negligent Homicide, IVM Actus Reus satisfied) b. Omission Liability (MPC 2.01(3)) Pope (others) i. Omissional Liability Elements: 1. Legal Duty to Act exists when: a. State imposes duty to care for another b. A certain status relationship exists: i. Parent to child, Husband to wife, Master to apprentice, Ships master to crew and passengers, innkeeper to inebriated customer c. Contractual duty to care for another d. Voluntarily assumed care and so secluded them to prevent the care of another e. List is not exhaustive 2. Omission was the proximate cause of harm, and 3. D had the capacity to act a. Physical Impossibility (only recognized defense against capacity to act) b. Financial Impossibility (Williams: Courts may take into consideration the fact that parents could not afford to bring children to a doctor, etc.) c. Fear? Cardwell: Women did not act to protect her daughter from the mothers boyfriend due to fear for her own personal safety. Court is beginning to acknowledge social, legal constraints that keep women in violent homes. ii. Ineffectual actions: Cardwell: Defense can argue that the D did take action (therefore no omission (failure to take action)), but affirmative action was not enough to stop harm. 1. Action must be reasonably calculated to achieve success, or else OL a. Cardwell: Court held that affirmative performance cannot be met by showing any step at all toward preventing harm. Person who is charged with the duty of care is required to take steps that are reasonably calculated to achieve success.

II.

Mens Rea: What Mens Rea is required for Criminal Liability? (Question of Law); Did the D exhibit requisite MR level with respect to each material element of crime? (Question of Fact) MPC 2.02 a. Cunningham: D stole a gas meter, charged with maliciously poisoning victim. Court held that Malicious = intent or recklessness, and he did not satisfy the requisite MR b/c he did not know of the consequences of his actions (therefore he did not intend them, or he did not know they would occur and went about them anyway). CL default for crimes not listing MR = Recklessness b. Levels of MR: i. Purposely (Intentionally) MPC 2.02(1)(a) [Subjective]: Actor acts purposefully with respect to a material element of an offense when: 1. It is his conscious object to engage in conduct of that nature or to cause such a result, and 2. If the element involves the attendant circumstances, he is aware that they exist. ii. Knowingly (knew the harm would result, but did it anyway) MPC 2.02(1)(b) [Subjective]: Actor acts knowingly with respect to a material element of an offense when: 1. He is aware that his conduct is of the nature of the offense or that the attendant circumstances exist, and 2. He is aware that it is practically certain this his conduct will cause the result of the element iii. Recklessly (Conscious Awareness and Gross Deviation [nature of risk]) MPC 2.02(1)(c) A person acts recklessly with respect to a material element of an offense when he consciously disregards (subj.) a substantial and unjustifiable risk (obj. gross deviation) that the material element exists or will result from his conduct. 1. Substantial and Unjustifiable Risk: The risk must be of such a degree and nature that, considering the nature and purpose of the actors conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actors situation (objective) 2. MPC Default (not listed MR) = Recklessness iv. Negligently (Should have realized the risk) MPC 2.02(1)(d) [Objective] Criminal Negligence: A personal acts negligently when he should be aware (objective) of a substantial and unjustifiable risk (objective gross deviation) that the material element exists or will result from his conduct. 1. Substantial and Unjustifiable Risk: The risk must be of such a nature and degree that the actors failure to perceive it, considering the nature and purpose of his conduct and the circumstances known to him, involves a gross deviation from the standard of care that a reasonable person would observe in the actors situation. v. Common Law Mistake of Fact Approach: Affirmative Defense - Mistake must be both Honest and Reasonable (lowers to negligence standard unreasonable belief = guilty) (If D didnt honestly believe D was consenting, then they are disregarding risk and actually just satisfy a recklessness standard) 1. Only available in General Intent crimes (like rape, where MR not listed), and only when if the facts were as if D believed, conduct would not have been a crime 2. If mistake is reasonable, acts as affirmative defense, if unreasonable, then lowers MR standard to negligence, which is good for prosecution a. Reasonableness standard: From whose perspective should reasonable be determined?

APPLICATION Homicide (Common Law): Intentional (WDP?) or Unintentional (Magnitude of Risk?) + Mention MPC Approach I. INTENTIONAL KILLINGS: 1. MURDER: What Degree? a. 1st Degree Murder: Intentional (MR) Killing (AR) with premeditation What defines premeditated, when does this apply? i. Carrol/Young Approach: Collapses 1st and 2nd degree murder: No time need elapse between decision to kill and fatal act intent equals premeditation ii. Guthrie Approach: Requires some evidence of prior design or calculation: opportunity for reflection. iii. Anderson Factors: 1. Prior planning activity, 2. Prior relationship/motive, 3. Nature of killing (preconceived) b. 2nd Degree Murder: Intentional (MR) Killing (AR) without premeditation c. Voluntary Manslaughter: Murder (MR/AR) with Provocation defense (J/E) Heat of Passion defense i. Acted in the heat of passion ii. As a result of a legally adequate provocation a. Approach #1: LAP Closed List: p. 391 Girouard Approach: Provocation is legally adequate if it is 1. Extreme assault/battery on the D, 2. Mutual Combat, 3. Ds illegal arrest, 4. Injury or serious abuse of a close relative of the D, 5. Sudden discovery of spousal adultery (i.e., actually finding ones spouse in the act of adultery) 1. Rekindling is important mechanic here. Words are not in the box, so need to use rekindling to get the actions of T1 (which may be in the box), back into consideration since actions in T2 may not be in the box. E.g. B rapes As daughter 3 years ago. B taunts A about it, and A kills B. Taunting is not in the Girouard box, but use rekindling tool to get actions at T1 back into the discussion (rape satisfies #4 in Girouard box). b. Approach #2: LAP Defendants reason should at the time of the act be disturbed or obscured by a passion to an extent which might render ordinary men of fair and average disposition, liable to act rashly or without due deliberation, and from passion rather than judgment. Maher 1. Provocation that would lead a reasonable person to act from passion rather than reason 2. Maher Dissent: Provocation is legally adequate if the victim was partially culpable (partial justification rather than an excuse approach). This generally requires witnessing the event because the victim is not partially culpable (partial justification) without certainty of provocation. In Ds presence. 3. Particularization of the Reasonable Person: 4. Bedder: No particularization of the reasonable person D. No characteristics go to the jury E. Easy to apply to other cases outside provocation 5. Camplin: Allows subjective characteristics that affect the gravity of the provocation (D was impotent or orthodox jew, source of the provocation) but not to those characteristics that affect Ds self-control (temperament) p. 409 D. Theory: Gravity of Provocation v. Self-Control characteristics E. Application: Very similar to Smith 6. Smith: Rejects Camplin, allows all characteristics that would be unjust not to consider p. 410. Allows jury to consider features of D that are relevant D. Let everything go to the jury E. Easy to apply other cases outside provocation iii. Before sufficient cooling time had elapsed, and iv. The D had not actually cooled 1. Rekindling affecting cooling time. Note: When third party is the victim: Mauricio approach If D was negligent to the identity of the third party (the victim) and thought the victim was the provoking party, then provocation defense applies. Scriva approach: If D kills the victim knowing the identity of the victim (third party) then no provocation defense. E.g. D kills an innocent bystander to get to provoking party.

II.

UNINTENTIONAL KILLINGS: a. Nature of Risk determinations: Factors for Measuring the Magnitude of the Risk: i. Probability of Harm (P), ii. Seriousness of Harm (L); iii. Defendants reason for creating risk: How Justifiable? b. Levels of Magnitude of Risk: i. No Risk (Reasonable Care), ii. Unreasonable Risk (Failure of Due Care Civil Negligence), iii. Substantial and Unjustified Risk (Gross Deviation from standard of Care), iv. High Risk of Destruction (Extreme Indifference to Value of Human Life(MPC)) a. Criminal Negligence Conduct creates S&U; b. Criminal Recklessness Conduct creates S&U + Conscious Awareness risk creation c. Involuntary Manslaughter: Killing (AR), through risk creation. But what MR requirement? i. Common Law Majority: Criminal Negligence, Welansky, Hall a. No Subjective Awareness Required b. Nature of Risk: Gross Deviation/ creating S&U risk (Objective) a. Particularization of Reasonable Person Problem: Williams (Cultural Defense) 1. How is the reasonable person particularized in these situations? Williams poses problem with justification for their actions based on their subjective beliefs (Native Americans with cultural history of child kidnapping afraid to bring child to doctor for fear of having their child taken from them) ii. Common Law Minority: Recklessness a. Conscious Awareness of Substantial and Unjustifiable Risk Required (Subjective) 1. How do you prove subjective awareness? Inferring from the facts must have known inference based on severity of the risk created b. Nature of Risk: Gross Deviation/ creating S&U risk (Objective) 1. Particularization of Reasonable Person Problem d. Depraved Heart Murder: Killing (AR), through risk creation (MR) (equal to 2nd degree murder) i. Mens Rea: a. Nature of Risk: EIVHL/Callous disregard to life/High risk of destruction a. Magnitude of risk creation particularization of reasonable person problem? Greater risk creation than Recklessness or Negligence. Risk is so great to be labeled Murder b. Risk of Grievous Bodily Harm = Risk constituting EIVHL b. Conscious Awareness of Risk Required (But is it really?) a. Malone: Risk is so great and typical of activity that D must have known the risk. E.g. D is playing Russian roulette, but thinks he has rigged the game so that the gun will not fire. Court finds he is still subjectively aware because he MUST have known of the risk he created (inference based on severity of risk). b. Voluntary Intoxication: Fleming: When failure to realize the risk is because of voluntary intoxication, subjective awareness of risk is presumed (Drunk driving cases) e. Felony Murder: Any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a felony which causes death, should be murder (not just any act done with intent to commit felony) (Just have to show the AR, MR for killing is bootstrapped from the commission of felony). i. 1st Degree FM: Felony listed in statute. E.g. Cal p. 375: FM is 1st degree murder when it occurs during the commission or attempted commission of: arson, rape, carjacking, robbery, burglary, mayhem, kidnapping, train wrecking, or any act punishable under 201. ii. 2nd Degree FM: Common law other felonies a. Note: Michigan has abolished felony murder, but any act that is already murder will be raised to 1st degree murder when done in the commission of certain listed felonies (Aaron p. 445) b. Note 2: Some states have designated particular felonies as the only felonies on which a FM conviction may be obtained

Basic Rule: Any death resulting from the commission of a felony = Murder iii. Is the D guilty of the underlying felony? a. One person is liable for the crime of another when D encourages or aids in its commission law treats each participant as the agent of the other when their actions further common objective (Accomplice Liability) a. NY Affirmative Defense to Accomplice Liability: D did not commit homicidal act, D was not armed, D had no reasonable grounds to believe that any other person was armed with a weapon, and D had no reasonable ground to believe that any other participant intended to engage in conduct likely to result in death or serious physical injury. iv. Does the death of a co-felon count? a. No? Some jurisdictions do not count death of co-felon in FM analysis because they are not the innocents that the law is seeking to protect would seek IVM/DHM/other b. Yes? Why shouldnt the death of a co-felon count? Trivializing the death of a co-felon. v. Did the felony cause the death? a. Causation Limits: Did the commission of the underlying felony cause the death? (Prox. cause and factual cause)(Court loosening: Substantial factor in bringing about the death?) a. Ds actions must be a factual cause of the death: 1. Stamp: Special Rule of Causation You take your victim as you find them (egg-shell skull rule): e.g. burglary victim has underlying heart condition and dies, death is not foreseeable risk of crime, but under Stamp it cause the crime. b. Ds actions must be the proximate cause of the death: The harm as the natural or probably consequence of the felony 1. King: No proximate cause when harm was not made more likely by the felony, risk has to rise from the commission of the felony itself. E.g. D and copilot were transporting drugs in a lane and crashed into mountain crash was not made more likely by the felony vi. Agency v. Prox. Cause?: 1. Agency Theory: Felony only applies to killings directly performed by felon or co-felon (Ds agent) in furtherance of the joint felonious plan. On the agency theory, the killer must be an agent of the D. a. D is not liable for a cofelons death if someone else (V, cop) kills him (Canola), D is not liable if cofelon kills on frolic of his own (exceeding scope of original felony (Heinlein), D is liable if cofelon kills another cofelon for messing up the plan (Cabaltero) b. Killing must have been committed in the furtherance of the felonious act i. Not on a frolic of his own 2. Proximate Cause Theory: A felon may be convicted under FM for any killing that is proximately caused by the perpetration of the felony (roughly speaking, any killing that results from the felony and was a foreseeable risk of the felony). a. FM applies when death is reasonably foreseeable result of the felony (Hernandez). Anyone can pull the trigger, not just felon or cofelon (Oimen D convicted of FM when V kills cofelon). Cofelon may still be L for a frolic on his own if it was forseeable b. King: No proximate cause when harm was not made more likely by the felony, risk has to rise from the commission of the felony itself. E.g. D and copilot were transporting drugs in a lane and crashed into mountain crash was not made more likely by the felony vii. Inherently Dangerous Felony Requirement: a. Analysis only applicable for 2nd degree FM; 1st degree FM (enumerated felonies) are per se inherently dangerous 1. Abstract Approach: To determine if felony is Inherently Dangerous, look at statute and not the facts of the felony. The felony must be one that is naturally inherently dangerous every time it is committed. (If the felony could be committed in any way thats not ID, you cant get FM). (Limits FM) a. Policy: If you didnt look in the abstract, every time a death resulted, we would see ID in the felonys circumstances (would broaden FM)

b. Phillips: Doctor advises parents not to get surgery for daughters eye cancer, and instead get treatment from him. FM based on medical grand theft No FM b/c you can commit MGT in a lot of ways not ID. 2. Manner & Circumstances Approach: Is felony inherently dangerous in the manner and the circumstances in which it was committed? (looks at actual facts and circumstances of the case at hand) (Broadens FM) a. Stewart: D mother went on crack binge and didnt feed baby, who died. Felony was permitting child to be a habitual sufferer (lacking proper food or clothing). In abstract felony not ID, but in circumstances (crack binge, forgetting to feed) it was ID, and therefore conviction for FM. b. Policy: Looks more at the facts at hand, and is therefore more appropriate in determining Ds culpability then the abstract approach. But also expands FM, an unpopular doctrine. b. Levels of Dangerousness: How dangerous is Inherently Dangerous? 1. High Probability of Death: Collapses Distinction with DHM a. Hines Dissent 2. Foreseeable Risk of Death (Only for as committed jurisdictions): a. Hines Majority viii. If no FM -> other homicide (Intentional (WDP v. Unintentional (Magnitude of Risk))

III.

MODEL PENAL CODE HOMICIDE (MPC 210) 1. Criminal Homicide (MPC 210.1) a. A person is guilty of criminal homicide when he P,K,R,N (MR Requirements) causes the death of another human being (AR) b. Criminal homicide is murder, manslaughter and negligent homicide 2. Murder (MPC 210.2) a. Except as provided in 210.3(1)(b) (EED Justification/Defense Common Law equivalent of Provocation defense) Criminal Homicide constitutes murder when: i. It is committed purposely or knowingly (MR) (Common Law - Intentional Killing) ii. It is committed recklessly (MR) under circumstances manifesting Extreme Indifference to the Value of Human Life (Common Law Depraved Heart Murder) a. Such recklessness is assumed if actor is engaged in or is an accomplice to the commission of (6 felonies): robbery, rape or deviate sexual intercourse, arson, burglary, kidnapping or felonious escape (Common Law Felony Murder) 3. Manslaughter (MPC 210.3) a. Criminal Homicide constitutes manslaughter when: i. It is committed recklessly (Common Law IVM with elevated MR requirement) ii. It is committed knowingly or purposefully (intentionally), read: would otherwise be murder, but is committed under influence of extreme mental or emotional disturbance: a. EED = Justification or Excuse a. Actor is under the influence of EED 1. for which there is a reasonable explanation or excuse (reasonable explanation for the emotional disturbance) 2. Reasonableness determined by viewpoint of a person in actors situation under circumstances as actor believes them to be. 4. Negligent Homicide (MPC 210.4) a. Criminal Homicide constitutes negligent homicide when it is committed negligently i. MR standard is Criminal Negligence (Common Law Involuntary Manslaughter)

IV.

RAPE: Traditionally Rape has been gender specific (vaginal intercourse, man raping woman), Modern approach is gender neutral (standard changed to sexual intercourse, more inclusive) 1. Actus Reus: Traditional Common Law Approach (Rusk): Presumes womans consent unless she resists or fails to resist out of fear a. Sexual Intercourse b. By Force or Threat of Force i. Did D use force to overcome victims resistance, or ii. Did D threaten/use force that prevented V from resisting (fear)? a. Threat of death or grievous bodily harm, nonphysical threats are insufficient c. Against the Will/Without the Consent of the Victim i. Did the victim resist, or a. How much resistance is required? a. Traditional: to the utmost: Fight back as much as physically possible b. Prevailing: Reasonable resistance considering totality of circumstances ii. Did she fail to resist out of fear? a. Fear must be objectively reasonable a. Effectively: Reasonable fear of death or bodily injury Note: Who is the reasonable person? Warren: general reasonableness, but from whose perspective is reasonable analyzed? From the Ds perspective, increases womens vulnerability to rape. From Vs perspective, man L for conviction as rapist when he honestly (and possible reasonable, from his perspective) believed she consented. Note: Time-splicing problem (rekindling): Allston: Looking at all past history, coloring activity otherwise consensual as fearful based on past threats v. limiting time too narrowly and blocking out legitimate threats. Rekindling threats immediately before act? 2. Reform Efforts to Rape Actus Reus: a. (NJ) MTS Approach: Rejects the resistance requirement and presumes nonconsent without affirmative showing of consent. Force of Penetration + no showing of consent i. Redefines physical force to any amount of sexual touching brought about involuntarily a. Only force required is the force that accomplishes penetration, effectively eliminates force requirement and switches presumption to nonconsent. ii. Any act of penetration engaged in by the D without the affirmative and freely given permission of the V to the specific act of penetration constitutes the offense of sexual assault. a. Permission can be indicated through words or through actions that, when viewed in the light of all the surrounding circumstances, would demonstrate to a reasonable person affirmative and freely given authorization for sexual act. a. Seems to inscribe a negligence standard as to the lack of consent b. Same problem of who is the reasonable person? From the Vs perspective or the Ds? Possibility of a gender divide 1. Interpreting no (presuming consent) v. interpreting yes (presuming nonconsent) b. WI and FL Approaches: p. 323 Top of Page c. (PA) Fischer: IDSI: Force of Penetration + Force (not necessarily physical): forcible compulsion defined as compulsion by use of physical, intellectual, emotional or psychological force, either expressed or implied no resistance requirement, lower AR requirement 3. Model Penal Code: Rape (MPC 213) a. Rape: Sexual Intercourse with Female (Not Wife) if i. Compel by force or threat of GBH/Death/kidnapping to be inflicted on anyone, or ii. Substantially impaired her power to appraise/control her conduct (administering drugs/ alcohol), or she is asleep, or less than ten years old. a. 2nd degree unless infliction of bodily injury, or victim wasnt voluntary social companion, b. Outmoded and not used by anyone. b. Gross Sexual Imposition: sexual intercourse with female (not wife) if i. Compel by any threat that would prevent resistance by a woman of ordinary resolution, or ii. He knows she suffers from mental disease/defect and is incapable of appraising her conduct iii. Or she submits b/c mistakenly supposes he is her husband

4. Mens Rea: Ds MR as to whether V consented a. Failure of Proof Approach: Basic MR approach thus far: Recklessness Standard b. Common Law Mistake of Fact Approach: Affirmative Defense - Mistake must be both Honest and Reasonable (lowers to negligence standard unreasonable belief = guilty) (If D didnt honestly believe D was consenting, then they are disregarding risk and actually just satisfy a recklessness standard) i. Only available in General Intent crimes (like rape, where MR not listed), and only when if the facts were as if D believed, conduct would not have been a crime ii. If mistake is reasonable, acts as affirmative defense, if unreasonable, then lowers MR standard to negligence, which is good for prosecution a. Reasonableness standard: From whose perspective should reasonable be determined? c. Strict Liability Approach: i. Justice Brown in Sherry companion case: Strict Liability once the victim says no. ii. Simcock/Lopez: No reasonable mistake of fact defense allowed because prosecution must show force, so subjective culpability is inherent (But is it really? No) Note: Danger of Reform: Implications of Fischer/PA force requirement (forcible compulsion defined as compulsion by use of physical, intellectual, emotional or psychological force, either expressed or implied no resistance requirement, lower AR requirement) + S/L standard

JUSTIFICATIONS/EXCUSES Justification: I did it and am responsible but you should not find me guilty because it was the right thing to do I am justified in what I did Excuse: I did it and it was a bad thing to do, but you should not find my guilty because for some reason I was not responsible: Involuntary Acts (not consciously willed by actor), Cognitive Deficiency (Inability to know acts were wrong or illegal), Volitional Deficiency (Actor is externally threatened) V. SELF DEFENSE 1. Honestly and a. Belief must be subjectively reasonably to the D 2. Reasonably believe a. Who is the Reasonable Person? b. Cant be invoked after the fact (or based on information learned after the fact) had to honestly and reasonably believe at the moment c. Belief also has to be objectively reasonable, not just reasonable to the D d. Goetz: Reasonable Belief may incorporate subjective elements into objective standard: 1. The circumstances facing the D or his situation. 2. Physical movement of the assailant. 3. Any relevant knowledge D had about that person. 4. Physical attributes of all persons involved, including D. 5. Any prior experiences D has at which can provide a reasonable basis for belief that deadly force was necessary under the circumstances (Thats a bit subjective) 3. That the force was necessary to defend against victims a. Other avenues of aid? Calling the police? (Norman) b. Law expects D to pursue every possible angle before resorting to use of deadly force 4. Imminent use of a. Defined as immediate danger, such as much be instantly met, such as cannot be guarded against by calling for the assistance of others or the protection of the law b. Norman: D wife suffered years of abuse at hands of husband, killed him while he slept conviction upheld. There was not an immediate threat to the wife. (Could have pursued avenues of aid). Applying temporal definition of imminence (Policy: Court unwilling to apply a futility argument that would tend to make opportune homicide lawful based on subjective speculation of indefinite future assaults) c. Robinson: Court upholds self-defense as applicable when D kills batterer in his sleep when torture appears interminable and escape impossible, because belief that only the death of the batterer can provide relief may be reasonable in mind of ordinary firmness (jury question = reasonableness) 5. Unlawful force, and a. Forcible response to lawful force = no defense 6. Ones own force isnt excessive a. Basic Applications of Self-Defense: i. Amount of force justifiably used must be reasonable related to force threatened ii. Self-defense applicable to any use of force, not just homicide iii. No self-defense claim for initial aggressors if force turned against him a. A pulls gun, B shoots at A and misses, A shoots at B (no self-defense because Bs actuals were not unlawful (actually was SD)) iv. Non-deadly aggressor met with deadly force can justifiable defend himself against the deadly attack a. Initial Aggressors force met with disproportionate level of force, still allowed SD b. A punches B, B shoots at A and misses, A shoots B (Bs attack was unlawful because it was excessive, and therefore As shooting is SD) v. Withdrawal negates initial aggressor exception if initial aggressor withdraws, he is restored his right of SD (jury must find whether D reasonable demonstrated withdrawal) a. D entitled to SD against aggressor if he honestly and reasonable believed that he did not withdraw

b. Mistake: If belief is reasonable, D entitled to SD even if D is mistaken i. Law willing to recognize that in some circumstances the use of deadly force is reasonable, even if it is unfortunate (Archrival reaches into jacket where his gun is, You shoot and kill him, turns out that he was only going to a tissue belief was reasonable) ii. Cant expect D to be infallible iii. J. Holmes: Detached reflection cannot be demanded in the presence of an uplifted knife. c. Imperfect Self Defense (minority view): Where Ds belief is unreasonable, mitigation from murder to voluntary manslaughter i. Majority Rule: No imperfect SD if belief is unreasonable, even if honest, shooting classified as murder d. MPC Elements for SD 3.04 p. 1089 i. Use of force is justifiable if D 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 a. Use of deadly force is not justifiable unless D believes that such force is necessary to protect himself against death, serious bodily harm, kidnapping or rape. b. If D is reckless or negligent in his belief that force was justifiable (belief was honest but not reasonable), D can only be held liable for homicides with the MR level of Recklessness or Negligence, respectively.

VI.

DURESS (Common Law) 1. A threat (do it or else) of 2. Imminent a. Majority: Ds belief in the futility of escape is not enough. Fleming p. 843 b. Minority: Ds belief in futility of escape is enough to show innocence. Contento-Pachon p. 844 3. Death or grievous bodily harm 4. That it is reasonable to fear will be carried out. a. Who is the Reasonable Person? 5. Not applicable to Murder a. Idea of proportionality is inherent in Duress doctrine: Death or GBH > Any crime not being murder b. While proportionality is inherent, does not actually need proving except in case of murder Note: Threat to Property is not sufficient Note: MPC 2.09(1) p. 1086 (More flexible than common law approach) -No imminence requirement, and death or GBH requirement replaced with threat of force against self or another, and no exclusion of murder -Affirmative defense for actor engaging in conduct when he was coerced to do so by the use or threat of unlawful force against his person or the person of another, which a reasonable person in his situation would have been unable to resist Note: Duress and Felony Murder: FM requires committing underlying felony, if Duress defense is available for underlying felony, then D cannot be charged with FM because they are not guilty of the underlying felony Note: (MPC) Duress defense is unavailable if the actor recklessly places himself in a situation in which it was probable that he would be subjected to duress. Also, unavailable if actor was negligent if negligence suffices to establish culpability for the offense charged

NECESSITY (Common Law) 2. D reasonably believes that she is facing imminent harm unless the law is broken; a. Whose perspective determines reasonable belief? 3. D is not at fault in bringing about the situation (traditionally force of nature or God) 4. The harm that would be avoided by the law-breaking exceeds the harm it causes (objective determination) a. Proportionality: Harm Avoided must be > Harm Caused by lawbreaking b. Ex-post weighing of threat and lawbreaking Note: MPC 3.02 p. 1088: Choice of Evils approach (proportionality approach) -Conduct which the actor believes to be necessary to avoid a harm or evil to himself or another is justifiable, provided that: the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged.