CRIMINAL LAW

OUTLINE

The Elements of a Criminal Offense

The Purposes and Limits of Criminal Punishments:

Punishment: The deliberate infliction of pain upon another person. A justification

for punishment helps in sentencing. There are different theories.

Utilitarian: Prevention of crime through:

1. Incapacitation
2. Reform
3. Deterrence

Incapacitation: Keeps criminals off the streets so that they

will not commit crimes.
---We never know when someone will not commit a crime
again. Prediction problem: How certain do we need to be that
someone will not commit a crime?

Reform: Imprison people for as long as it takes to reform

them. It is a move toward indeterminate sentences.
---How do we know if someone is reformed? Is rehabilitation
even feasible?

Deterrence: An economic theory. The citizenry decides

whether a crime is worth committing.
---What is the price for committing a crime?
---Is it unfair to make an example of someone?
---The limit is not justice; it is a reduction in utility.
---If you send a murderer to jail does it reduce the murder rate?
Does deterrence even work?

Thus this theory promotes the idea of no needless punishment

Retributive:
Crimes deserve punishment. The punished criminal must be
blameworthy.
---What if you believe that people are the product of genes or
their upbringing? Are they blameworthy when they commit
crimes?

The punishment must be proportional to the crime.

---Measurement: punishment is translated into years in prison.

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 ---Murder deserves a higher sentence than shoplifting—but
how much higher?

This theory promotes the idea of no unjust punishment.

Relevant cases:
Carbaga
James Hogan
Mann
Boesky

The Act Requirement

The Model Penal Code

A theoretical code set up by scholars as a reform instrument. A model for
legislatures to look at

---It divides up crimes into general and specific parts.

Conduct(Actus Reus)
Mens Rea(Mental State)
Attendant Circumstances
Result

---A criminal justice system exist whereby states have their own criminal
laws. Sometimes they adopt parts of the MPC as their actual body of criminal
law. The Federal government has its own set of laws.

Actus Reus

Why require an actus reus?

The criminal offense must include some conduct, that is, action or the
failure to act where action is called for.

The act requirement has two distinct requirements

1. The conditioning of just punishment on the proscription,
charging, and proof of an ‘actus reus’.
2. The particular actus reus the prosecution must charge and
prove beyond a reasonable doubt in order to establish
liability for a particular crime

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 The requirement of an act may refer to some or all of seven conditions
for just punishment:
1. past
2. voluntary
3. bad
4. conduct
5. specified
6. in advance
7. by statute

The law treats man’s conduct as autonomous and willed, not because
it is, but because it is desirable to proceed as if it were.

The orthodox view is that culpability is primarily a matter of the

actor’s mental state, rather than of the conduct in which he
engages. Paradoxically, the limitation of criminal fact to conduct
constitutes the first and most important line of defense against erosion
of the idea of culpability, for it keeps the criminal law from becoming
the servant of the utilitarian ideal of prevention.

Voluntariness and compulsion

Martin v. State, Alabama Court of Appeals 1944

Appellant was convicted of being drunk on a public highway.
Officers arrested him at home and took him onto the highway,
where he allegedly committed the acts of manifesting a
drunken condition and using loud and profane language.

---The arresting officers involuntarily and forcibly carried the

defendant to the street. The statute presupposes a voluntary
appearance.
---Voluntary appearance is necessary. A person cannot be
convicted under the statute if police involuntarily brought
him into a public place.

Section 2.01 of MPC---Requirement of a Voluntary Act…

(1) A person is not guilty of an offense unless his liability is based on
conduct that includes a voluntary act…
(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.

People v. Grant, IL Court of Appeals, 1977

Seth Grant witnessed an altercation between another patron of
the tavern he was at and the tavern owner. The police escorted

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 the patron outside and the defendant leapt through the crowd
outside and struck an officer twice in the face. Later at the jail,
the defendant had a grand mal seizure. He suffers from
psychomotor epilepsy; seizures prevent the conscious mind of
controlling the actions of the body.

---Although automatism is not insanity, psychomotor seizures

prevent the conscious mind of controlling actions. Thus, the
body acts involuntarily.
---The jury had to decide fact. Did Mr. Grant have a
psychomotor seizure that caused involuntary action at the tie he
struck the officer?

Section 2.01 of MPC…

(2) The following are not voluntary acts within the meaning of this section:
(a) a reflex or convulsion;
(b) a bodily movement during unconsciousness or sleep
(c) conduct during hypnosis or resulting from hypnotic suggestion;
(d) a bodily movement that otherwise is not a product of the effort or
determination of the actor, wither conscious or habitual.

See Cases of: King v. Cogdon

Ms. Cogdon kills her daughter during a sleepwalking incident.

People v. Decina
Mr. Decina had an epileptic seizure while driving and his car struck and
killed four people.

Voluntariness and free will

Robinson v. California, Supreme Court of US, 1962

The appellant was convicted after he was found guilty of being
addicted to the use of narcotics. Police allegedly encountered
him in Los Angeles, observed track marks, and heard him
admit to the occasional use of narcotics.

---The statute makes the status a narcotic addiction a

criminal offense, for which the offender may be prosecuted at
any time before he reforms.
---Narcotic addiction is an illness...that may be contracted
innocently or voluntarily. Therefore, to convict a person of
addiction, or the propensity to use narcotics, is cruel and
unusual punishment.

Powell v. Texas, US Supreme Court, 1968

The defendant was arrested and charged with being found in a
state of intoxication in a public place, in violation of TX Penal

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 Code. Counsel for the defendant alleged that he was afflicted
with the disease of chronic alcoholism and that his appearance
in public was not of his own volition. Defendant was
convicted.

---The appellant was convicted not of being a chronic alcoholic

but for being drunk in public.
---Status as an alcoholic compels intoxication, which is
inseparable for conduct while intoxicated.
---To give punishment for drunkenness, it has to be said
that there was a freely willed movement.
---There should not be punishment for thoughts instead of
behavior. Willed behavior is punished.

Pottinger v. City of Miami, US District Court, 1992

Plaintiff’s complaint alleges that the City of Miami has a
custom, practice an policy of arresting, harassing and otherwise
interfering with homeless people for engaging in basic
activities of daily life—including sleeping and eating—in
public places where they are forced to live. Plaintiffs argue
that there status of being homeless is involuntary.

---Homeless people have no realistic choice but to live in

public places. People rarely choose to be homeless, it is
usually due to factors beyond the people’s control.
---Arresting people for harmless acts that they are forced to
perform in public effectively punishes them for being
homeless.

Can omissions satisfy the act requirement?

Yes they can, whereby the defendant commits no act because the charge is
that he/she omitted to act.

Jones v. United States, US District Court, 1962

Shirley Green had a child out of wedlock and to avoid
embarrassment she arranged for Jones, a family friend, to take
care of her child in Jones’ home after birth. At ten months old,
he was admitted to the hospital, and it was determined that he
suffered from sever malnutrition. Subsequently, the child died.
Did an omission to act occur?

---Yes. The court held that: omission is based upon the

proposition that the duty neglected must be a legal duty,
and not a mere moral obligation.

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 ---Moreover, it held that there are four situations where one
may be held criminally liable.

1. where a statute imposes a duty to care for

another
2. where one stands in a certain status relationship
to another
3. where one has assumed a contractual duty to care
for another
4. where one has voluntarily assumed the care of
another and so secluded the helpless person as to
prevent others from rendering aid

Model Penal Code, section 2.01(3)

Liability for the commission of an offense may not be based on an

omission unaccompanied by action unless:
(a) the omission is expressly made sufficient by the law defining
the offense; or
(b) a duty to perform the omitted act is otherwise imposed by law

--Duty to aid victims or report crime—

There are certain relationships that merit duty:

1. Contractual: an agreement to do a duty
2. Assumption of risk: legal duty care for someone
3. Statute: state law
4. Relationship: parent and child, spouses, etc.
5. Creation of peril: if you create a peril then you
have a duty act

Refer to the example on p. 134:

A small child drowns in a public swimming pool as 20
adults look on. Bystanders, the lifeguard, the child’s
babysitter, a municipal official, the child’s cousin, a
close family friend, and a stranger who stumbled and
accidentally pushed the child into the pool.

Who has a duty to save the child?

Crimes of possession

Model penal Code, Section 2.01(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.

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 People v. Valot, Michigan Court of Appeals, 1971
Valot rented a motel room for himself and several friends. The
room was registered in his name and the motel manager
complained to the police that “hippie type” people had been
using the room. The police observed marijuana and drug
paraphernalia in the room.

---Was Valot guilty of possession?

-He knew the location of the drugs
-He had the ability to exercise control
-He had the intent to exercise control
Thus, he was guilty of constructive possession
whereby someone else possessed but he still had
control.

The Guilty Mind

Guilty mind vs. strict liability: the case of “public welfare offenses”

United States v. Balint, US Supreme Court, 1922

The defendant was indicted on a violation for unlawfully
selling an opium derivative and coca leaves. The defendant
demurred claiming that he did not know what the drugs were.

---Question: whether statute requires a mental element?

---No. There does not have to be a mental element.

---The purpose of the narcotic act is to “require every person

dealing in drugs to ascertain a his peril whether that which
he sells comes within the inhibition of the statute.” Thus, he
was strictly liable.

United States v. Dotterweich, US Supreme Court, 1943

Dotterweich, president of Buffalo Pharmaceutical Co.,
purchased drugs from it manufacturer and shipped them,
repacked under its own label, in interstate commerce.

---Question: whether ignorance of the FDC Act by the CEO

was sufficient to plead innocent for a crime or was Dotterweich
still liable?
---The liability rested with Dotterweich to find out what the
law was. There is a burden upon those people who have at
least the opportunity of informing themselves of the
existence of conditions imposed for the protection of

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 consumers before sharing in illicit commerce; rather than to
throw the hazard on the innocent public that is wholly helpless.
Thus, Dotterweich was strictly liable.

United States v. Park, US Supreme Court, 1975

The president of Acme Food was found liable for allowing
food to be contaminated in interstate commerce. There were
36,000 employees and 18 warehouses at Acme and the FDA
found Jello bails with rodent droppings on them.

---Question: whether the president was liable for the

contamination of Jello in a warehouse?

Yes. He stood responsible in relation to a public danger.

---The “law punishes neglect where the law requires care.”

---“The accuses is usually in a position to prevent…it.”
---There is a duty to ensure that violations will not occur by
holding corporate officers responsible.

Morrissette v. United States, US Supreme Court, 1952

The defendant openly entered an Air Force bombsite and
collected metal bomb casings that he flattened and sold at
profit. He was charged with converting government property.

---Question: whether Morrissette was guilty although he had no

knowledge of the government statute?

---If it is a traditional common law crime then it has mens rea.

Thus, in Morrissette, it was interpreted as larceny and it was
treated so.

Strict Liability:

(1) How do we know if a statute requires mens rea when it is

silent?
MPC—strict liability is not a good basis for criminal
liability.
(2) Does it make sense to have criminal convictions based on
strict liability?
(3) Who is vulnerable to strict liability?

One indicia of presumed mens rea from silence is:

(1) Traditional common law crimes—mens rea is required
even when the statute does not state it.

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 One indicia for strict liability is:
(1) A low sentence
-mallum in se—it is immoral
-mallum prohibitum—it is illegal but not immoral

Mens Rea Analysis

Regina v. Faulkner, Ireland Court of the Crown, 1877

Seaman attempted to steal rum and while trying to plug a hole
in a rum cask he accidentally lit the rum on fire with the match
that he was holding for light.

Should the conviction for the felony charge for the lighting the
ship on fire be upheld? Is intent required?

---If a person while committing a felony does a collateral

act then it is not necessarily a felony
---There must be an intent to commit the act or it must be a
necessary consequence of a felonious act, or having a
foreseeable result.
---Although no intention to set the fire existed, if he set fire to
the ship while stealing rum then he is guilty. The wrongdoer
assumes the risk.

Categories of culpability under the MPC

“a person is not guilty unless he acts purposely, knowingly, recklessly,

or negligently, as the law may require…”

Kinds of culpability:

Purposely: If it is one’s conscious object to engage in an act

and if the element involves the attendant circumstances and he
is aware of the existence of the circumstances or he believes
or hopes they exist.

Knowingly: If he is aware that the element involves the nature

of his conduct or the attendant circumstances, and that he is
aware that his conduct will cause such a result.

Recklessly: If he consciously disregards a substantial and

unjustifiable risk that the material elements exists or will
result from his conduct.

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 Negligently: If he should be aware of a substantial and
unjustifiable risk that the material element exists or will result
from his conduct.

Often Statutes are silent and they have no mental term.

There are three questions in regard to this:

1. How is silence interpreted in the statute?

Do we say that there is a mental element or not?
2. To which elements of mens rea does the action
apply?
The MPC poses default rules that say that if
mens rea is silent then it still exists and
attaches to each element.
3. What level of mens rea is required?
MPC the four levels and the default rule:
1. Purpose
2. Knowledge
3. Recklessness
4. Negligence
5. Strict liability because some statues
write-in strict liability

Categories of culpability under common law: general and specific intent.

Specific intent:
A mental element requiring “purpose” or “knowledge” because either
(a) the statute has a mental term that applies to a material element of
the crime which equals purpose of knowledge, or, (b) the statute
requires intent as to some future act or result which is not a part of the
actus reus.

General intent:
Defined as not “specific intent”. In most courts, the general intent
element requires at least some recklessness-the conscious disregard
for risk.

Challenging the Mens Rea element because—

The defendant made a mistake of fact:

State v. Guest, Supreme Court of Alaska, 1978

The defendant had sex with a girl that was 15 years old.

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Whether an honest and reasonable mistake of fact regarding a
victim’s age may serve as a defense to a charge of statutory
rape?

---Yes, the charge is defensible where an honest and reasonable

mistake of fact as to the victim’s age is shown.

Anderson v. State—the belief of a person that a girl was over

18 is no excuse.

Speidel v. State—consciousness of wrongdoing is an essential

element of penal liability
---Statutory rape is unsupportable in this case unless a
reasonable mistake of age is allowed. To refuse such an
offense would be to impose criminal liability without any
mental element
---A mistake of fact should not necessarily excuse guilt, but it
should reduce the offense.

Mistake of Fact:
a) Unaware of risk because of honest, reasonable
mistake of fact. There is no liability but in some
courts if someone still committed a lesser criminal
act then mistake is not a defense.
b) Honest but unreasonable mistake of fact—there is
no defense in most common law cases.

People v. Bray, California Court of Appeal, 1975

James Bray appealed from conviction for being a felon in
possession of a concealable firearm. Bray was sentenced to
two years summary probation. He became a guard and
purchased .38 and .22 pistol. He voluntarily led police to the
firearms and was subsequently charged with possession.

---Whether mistake of fact where Bray did not know if he was

a felon is an acceptable defense?

---Yes, if he did not know whether or not he had committed a

felony then he “would be ignorant of the facts necessary for
him to determine“ if he was in adherence to the law.

Model Penal Code section 2.04. Ignorance or Mistake

(1) Ignorance or mistake as to matter of fact or law is a defense if:
(a) The ignorance or mistake negatives the purpose, knowledge,
belief or recklessness or negligence required to establish a
material element of the offense; or

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 (b) The law provides that the state of mind established by such
ignorance or mistake constitutes an offense.

Purpose or knowledge that one believes something:

Any mistake exculpates—whether the mistake is
reckless, negligent, or reasonable. If D is honestly
mistaken in believing that the fact dos not exist, he
cannot be convicted.

Reckless:
A negligent or reasonable mistake exculpates. D is
culpable only if his mistake is reckless.

Negligent:
A reasonable mistake exculpates. D is culpable only
if his mistake is reckless or negligent.

Strict Liability:
No mistake exculpates. D is culpable no matter what
type of mistake he makes—reckless, negligent, or
reasonable.

The defendant lacked capacity for mens rea because of diminished

capacity:

People v. Wetmore, California Supreme Court, 1978

The defendant entered the plaintiff’s apartment with the belief
that he was entering his own apartment. He was charged and
convicted of 2nd degree burglary.

Whether the evidence of diminished capacity is admissible at

the guilt phase?

---Yes, because the state bears the burden of proving every

element of the offense charged and the defendant cannot be
denied of presenting evidence simply because it suggests
insanity.
---A defendant, who because of diminished capacity, does not
entertain the specific intent required for a crime is entitled to be
acquitted.
---The distinction between admissible evidence as to the fact
that the defendant did not entertain specific intent and
inadmissible evidence that the defendant could not entertain the
intent cannot be supported.
---The trial court cannot refuse to admit evidence that attempts
to prove diminished capacity.

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Diminished capacity can be used as a doctrine of “partial
responsibility”: because of some mental problem one is not as
responsible as others, thus, the crime is reduced.

Mental Illness:
No mens rea—diminished capacity

General defense:
1. Even if all of the elements are present then
the defense still exists. E.g. insanity: there
is a defense regardless of the elements
involved.
2. As a defense of partial responsibility: E.g.
self defense

The defendant lacked capacity for mens rea because he was

intoxicated.

Intoxication: a disturbance of mental or physical capacities

resulting from the introduction of any substance into the body.

State v. Cameron, NJ Supreme Court, 1986

The defendant approached the plaintiff and disrupted a card
game with her conduct. The participants moved the game to
another location; the defendant followed them an overturned
the table. Subsequently, she attacked the plaintiff with a
broken bottle. He sustained 36 stitched and permanent injury
to his hand.

Was the evidence sufficient to require the trial court to charge

the jury on the defendant’s intocication?

---No, the defendant cannot suggest that she did not know what
she was doing or that she was unable to engage in purposeful
conduct.
---Self-induced intoxication is not a defense unless it negatives
an element of the offense.
---When the culpability for a crime is that the person acted
“purposely” or “knowingly” evidence of violent intoxication is
admissible to disprove that requisite mental state.
---A defendant must show that he was so intoxicated that he did
not have the intent to commit an offense.

Intoxication under common law and the MPC:

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 Common law: intoxication is relevant if it shows no
specific intent. It is relevant to establish general
intent—saying that one is drunk will show that one has
general intent, it shows mens rea.
It is a defense in specific intent crimes
because, if, as the result of his intoxication, a person
was incapable of forming, or did not in fact form,
the specific intent required in the definition of an
offense.

MPC: The MPC distinguishes between three types of

intoxication: self-induced, pathological and
involuntary intoxication. It is relevant to show no
mens rea, except with recklessness. If a person is
charged with a crime that requires recklessness and is
intoxicated then he/she is guilty anyway.
Intoxication=Recklessness

Causation:

“But for” Causation/ Causation “in fact”

The causation of some harmful consequence is part of the act

element of many offenses. Conversely, the act element of many
crimes consists only in the causing of some result, thus, the act
element of most crimes of homicide is simply the causing of a person’s
death.

1. But-For Causation: It generally infixes causes to a class of

necessary condition or acts “but for” which the harmful result
would not have occurred. An exception is often made for
simultaneous sufficient conditions, as when two assailants
simultaneously shoot a victim.
2. Forseeability: It requires a connection between the actor’s
culpable mental state and the result. For example, if the defendant
is charges with recklessly causing an injury, the injury must be one
that he foresaw in order to be caused by his recklessness.
Negligent action causes harm only if it leads to harm that is
“reasonably foreseeable.” This is often referred to as “proximate
causation”.
3. Intervening Events: Generally, defendants were absolved of
causal responsibility if they could identify and intervening event
that broke the chain of causation. An event might be said to break
the chain of causation if it was a necessary condition for the
harmful result, after the defendant’s act and not caused by the
defendant’s act.

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(a) Intervening Actions: Premised on free will, the common
law generally assumed that individuals were the exclusive
cause of their own actions.
(b) Temporal Intervals: A lengthy interval between cause and
result raises a number of problems. First, the longer the
interval, the more plausible it becomes that but for the
defendant’s action the victim might have suffered some
other misfortune. Second, the longer the interval, the more
plausible it becomes that some other undetected factor has
caused the result.

Regina v. Martin Dyos, Central Criminal Court, 1979

A fight broke out between 12 youths, 5 on one side and 7 on
the other. One of the participants was hit in the head with a
brick. The pathologist’s report stated that the cause of death
was due to a fractured skull and there were two or more
separate blows, each of which, would have been potentially
fatal. There was no certainty as to which wound came first.

Was Martin Dyos responsible for the death?

---No, because there was another injury, the injury may not
reasonably have been the cause of death, and the injury could
not been shown to be the cause of death.
---But-for causation is of legal interest only in the
comparatively rare cases of where, notwithstanding
appearances, it is absent; that when it is alleged to be absent,
this raises a question of fact for the jury, who may decide by
ordinary experience but may have to be assisted by expert
evidence.
---Causation may be an element of any crime defined as the
causing, producing, or achieving of a result. These results may
include injury, damage, annoyance, fear, misinformation, or
contamination.

Accelerating the victim’s death?: This is killing in law. So it is

no defense to a person who stabs another to death to show that
the victim was already dangerously ill.

Concurrent sufficient causes? If two acts occur simultaneously

but independently then the joint conduct can be analyzed as if
the two persons were one party. Either act alone was
sufficient to cause the result that occurred when it did.

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“Proximate” Causation / “Legal” Causation

An act that is a direct cause of a social harm is also a proximayte cause

of it. Inasmuch as no other causal factors have intervened, there is
proximate party to whom to shift legal responsibility for the result.
An “intervening cause” is an independent force that operates in
producing harm to another after the defendant’s voluntary act has been
committed or his omission has occurred

Model Penal Code

The MPL applies the but-for rule. It treats but-for causation as
the exclusive meaning of causation in criminal law.

The element is purposely, knowingly, recklessness and negligence are

not established unless:

Section 2.03 2(b) and 3(b)

2(b) the actual result involves the same kind of injury or harm as that designed or
contemplated and is not too remote or accidental in its occurrence to have a (just)
bearing on the actor’s liability or on the gravity of his offense.

3(b) same as 2(b)

Proximate cause usually denotes a standard of causation that limits

causation to results expected by the actor. Proximate cause standards
do not always link a probability standard to the defendant’s requisite
culpable mental state. A condition necessary to a result may
“proximately” cause that result if it does so regularly, predictably, or
commonly, regardless of what culpable mental state is required to
make that proximate cause a crime. It suggests that some causes are
too distant or remote from their results to count as legal causes, or at
the time of acting, the danger of an unfortunate consequence may be
remote from the view of an actor, or a reasonable person in the actor’s
place. Proximate causation can illustrate defects in the causation
chain. It can be too long temporally and it can be broke by
intervening causes.

United States v. Hamilton, U.S. District Court, D.C., 1960

The defendant and the decedent were playing pool, drinking,
and talking. Finally, an argument developed, both were asked
to leave the pool hall, and they subsequently started a fight
outside. The defendant kicked the decedent in the head many
times thereby he was brought to the hospital. He was
restrained to his bed but later the restraints were removed.
Thereafter, he pulled out the tubes and died.

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 Was the defendant guilty of the decedent’s death whereby the
decedent pulled the tubes out of himself?

---Yes, if a person strikes another and inflicts a blow that may

not be mortal in and of itself but thereby starts a chain of
causation that leads to death, he is guilty of homicide.
---This premise is supported by People v. Lewis, Stephenson v.
State and Hopkins v. United States. Thus, the injuries inflicted
on the decedent were the cause of his death.

Homicide:

Introduction:

Common law recognizes two broad categories of homicide: murder

and manslaughter. It defines murder as the killing of another
human being with “malice aforethought”. Malice aforethought
does not necessarily involve premeditation. It describes criteria that
distinguish murder. Malice is the intention or willingness to cause the
death of another.

Murder is generally defined as an unjustified killing manifesting:

1. purpose to cause death;
2. or, intent to inflict serious bodily harm;
3. or, extreme recklessness with respect to a serious risk of
harm to another’s life;
4. a willingness to undertake even a very small risk of
death where the risky conduct is so unworthy as to
establish guilt of a serious felony.

First degree murder is both intentional and premeditated, or it

involves a killing during the course of a major felony.

Manslaughter is homicide without malice. It consists of voluntary

and involuntary manslaughter.

The Model Penal Code

It avoids the tem voluntary and involuntary in defining manslaughter,
unites them under a single section, and then distinguishes them based
on recklessness and criminally negligent homicide.

§210.2 Murder
Criminal homicide constitutes murder when:
1. it is committed purposely or knowingly
2. it is committed recklessly under circumstances manifesting
extreme indifference to the value of human life.

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 §210.3 Manslaughter
Criminal homicide constitutes manslaughter when:
1. it is committed recklessly, or,
2. a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is
reasonable explanation no excuse.

§210.4 Negligent Homicide

1. Criminal homicide constitutes negligent homicide when it is committed
negligently

Intentional Homicide:

How is intent proved?

Francis v. Franklin, U.S. Supreme Court, 1985

Prisoners were receiving dental care when the defendant
escaped and seized an officer’s pistol. He knocked on
someone’s door and when the person slammed his door, the
gun went off and the bullet hit the person through the chest.
---No intent to kill was alleged, there was plenty of opportunity
for him to kill someone.
---The burden was for the prosecution to prove every element
beyond a reasonable doubt.

The intent to kill establishes the “malice” or “malice

aforethought” necessary for murder.

Presumptions:

1. Mandatory presumption: if proven you must find the

presumed fact.
2. Rebuttable presumption: if proven you must find unless
rebutted.
3. Permissible presumption: if proven you may find the
presumed fact.

Natural and probable Consequences Rule:

The intent to kill form of “malice aforethought” involves

subjective fault. The prosecutor must prove that the defendant
formed the intent to kill another person, rather than that,
simply, a reasonable person would have known the conduct
would result in death.
The subjective fault is proved with a syllogism
1. Ordinary people intent the natural and probable
consequences of their actions.

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 2. The defendant is an ordinary person
3. Therefore, she intended the natural and probable
consequences of her actions in this case.

When the probable consequence of the defendant’s conduct is

that someone will die, this syllogism invites the jury to infer
the requisite specific intent.

Deadly Weapon Rule:

When a person kills another with a deadly weapon, proof of

intent to kill is buttressed further. The more general
proposition that a person intends the natural and probable
consequences of her actions is supported by the somewhat
more specific proposition that when she intentionally uses a
deadly weapon, intent to kill may be inferred.

Premeditated First Degree Murder

United States v. Watson, DC Court of Appeals, 1985

The defendant ran into an apartment complex, used the
telephone in an empty apartment, and sat down at the table.
The officer cam into the apartment and told the defendant he
was under arrest and he would blow his mother fucking head
off. The defendant bear-hugged the officer and grabbed his
gun. He held the gun at the officer’s chest. He shot the officer.

---The defendant was convicted of first degree murder.

---First degree murder is the calculated and planned killing.
To prove premeditation, it must be shown that a defendant
gave thought before acting to the idea of taking a human
life and reached a definite decision to kill.

Premeditated: to think about beforehand. There is a debate

among courts on the mount of time it takes to premeditate.
Some believe that no time is too short, others believe that it
take some time. According to Watson, “no specific amount of
time is necessary to demonstrate premeditation and
deliberation,” and the government need not show a “lapse of
days or hours or even minutes.”

3 varieties of premeditation:
1. intent to kill—if one made a decision to kill
2. time—if there was time for the person to deliberate
3. “mature and meaningful reflection”-“planning and
calculation”—someone who reflected and then went ahead
and murdered

19
Voluntary Manslaughter

(a) Theory and Categories of Mitigation

Manslaughter encompasses two different kinds of killings.

Voluntary manslaughter and involuntary manslaughter differ
in that voluntary is intentional; the defendant has with
knowledge or purpose killed another human being rather than
having done so with gross negligence or recklessness or merely
with the intent to commit some other crime.

The criminal law reduces murder to voluntary manslaughter where

there has been “provocation” that has caused the defendant to act
in the “heat of passion.”

People v. Walker, IL Court of Appeals, 1965

The decedent brandished a knife in front of three men who he
demanded gamble with him. The deceased slashed at the men
with his knife. Finally, the deceased was knocked down with a
brick. The defendant picked up the decedent’s hand with the
knife and slashed his throat.

---Voluntary manslaughter was declare on appeal because the

defendant’s killing was upon a sudden heat of passion, caused
by provocation apparently sufficient to make the passion
irresistible.

Provocation under the Common Law:

Provocation affects the quality of the actor’s mind as an indicator of moral

blameworthiness. Provocation has two essential elements: (1) objective—
the provocation must be adequate and adequacy is measured by reference
to the objective standard of a reasonable man. (2) Subjective—the
defendant must in fact have been provoked; he must have acted in
response to the provocation.
Physical attack might constitute adequate provocation. Mutual
combat might also. Certain other acts, chiefly violent or sexual
assault on a close relative and adulterous acts.

Mitigaton:

Partial Justification:
If the defendant somewhat exaggerates the premise for killing or the
killing is an excessive reaction there is sometimes partial
justification.

20
There are certain criteria for the claim:
1. The provocation has to come from the victim
2. Words themselves are never adequate provocation
3. The victim’s defensive force against the killer’s initiating
force could never be a provocation.
4. The killer must have some strong evidence that the wrong he
avenges actually occurred.

Partial Excuse:
Sometimes there is partly an external force that “motivated” a
killing.
If partial excuse is the basis for mitigation then there are criteria:
1. The killer must act immediately after the provocation
2. The victim need not have been the cause of the provocation
3. The victim’s defensive force against the killer’s initiating force
could be a provocation
4. The killer may have been wholly, though understandably,
mistaken in ascribing bad conduct to the victim.

People v. Berry, Supreme Court of CA, 1976

Defendant and his wife were married. Five days later she
returned to Israel. Upon her return, she provoked him by
telling him that she had fallen in love with another man. She
sexually teased him accepting his advances and then repelling
them at times. Finally, he argued and strangled her with a
telephone cord.

---It is to the juror to determine if there was adequate

provocation to act in a heat of passion.
---The Prosecution contended that there was an adequate
“cooling period”. Thus, it could not have been heat of passion.

Cooling Period:

The defense of provocation is unavailable if a reasonable person

would have cooled off in the time that elapsed between the
provocation and the fatal act.

Causal Connection:

The defense against provocation is unavailable to a person whose

motivation for the homicide is unrelated to the provocation.

Model Penal Code Treatment of Manslaughter: §210.3

(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) A homicide, which would otherwise be murder, is committed under
the influence of extreme mental or emotional disturbance for
which there is a reasonable explanation or excuse. The

21
 reasonableness of such explanation or excuse shall be determined
from the viewpoint of a person in the actor’s situation under the
circumstances as he believes them to be.

(b) Who is the “reasonable person” who would have been provoked?
A reasonable man is a person having the power of self-control to
be expected of an ordinary person of the sex and age of the
accused, but in other respects sharing such of the accused’s
characteristics as they think would affect the gravity of the
provocation to him, and whether such a person would react to the
provocation as the accused did.

People v. Wu, CA Court of Appeals, 1991

Defendant believed that the only way that she could take care
of her son was to kill him and herself and do so in heaven.

---It was ruled that if requested, the jury should be instructed

on how evidence of the defendant’s cultural background relates
to the defendant’s theory of the case.
---The evidence of the defendant’s background was relevant
on the issue of premeditation and deliberation. It explained
mental status.
---The evidence was relevant in the area of malice
aforethought. It may have indicated heat of passion negating
malice aforethought.
---Conclusion: a jury may consider evidence of a defendant’s
cultural background in determining the existence or
nonexistence of the relevant mental states.

MPC—refer to §210.3(b)

Unintentional Homicides:

(a) Killings by risk taking no liability, involuntary manslaughter, or

extreme recklessness (depraved heart) murder?

Involuntary Manslaughter:

Involuntary manslaughter involves a gross deviation from the

standard of care that reasonable people would exercise in the same
situation. Under this standard, “ordinary” negligence—and amount
sufficient to justify tort liability—is insufficient for criminal liability.

State v. Williams, WA Court of Appeals, 1971

The defendants were ignorant, they did not take their baby, that
had a toothache, to the doctor because they feared that the
Welfare Department would take the baby away.

22
 ---The defendants were negligent in not taking the baby to the
doctor and its death was a proximate result of the negligence.
---At common law, the breach of duty, in the case of
involuntary manslaughter, had to amount than ordinary
negligence, it had to be gross negligence.
---Ordinary negligence supports a verdict of statutory
manslaughter. The caution exercisable by a man of
reasonable prudence on notice concerning the symptoms of
the baby’s illness and lack of improvement in the baby’s
apparent condition in the period signified that the baby needed
medical attention. The defendants’ failure to do so was
ordinary negligence, thus, statutory manslaughter.

----The MPC requires recklessness for manslaughter but provides a lesser

homicide crime for which negligence will suffice.----

People v. Strong, NY Court of Appeals, 1975

The defendant, leader of a religious sect, convinced people that
he could pierce a person’s heart without killing him. In the
attendant case, he did and the victim died.

Did the trial court err in not submitting to the jury a lesser
crime of criminally negligent homicide?
---The essential distinction between the crimes of manslaughter, 2nd
degree, and criminally negligent homicide is the mental state of
the defendant at the time the crime was committed. In one, the actor
perceives the risk, but consciously disregards it, In the other, he
negligently fails to perceive the risk. The result and the underlying
conduct, exclusive of the mental element, is the same.
---Yes. In this case, there was a reasonable basis on which the jury
could have found that the defendant failed to perceive the risk in his
actions. His conduct and lack of perception would justify a verdict
for criminally negligent homicide.

Depraved Heart Murder:

Mayes v. The People, IL Supreme Court, 1883

The wife of the plaintiff came to her death by burning,
resulting from the plaintiff in error throwing a beer glass
against a lighted oil lamp which she was carrying, and thereby
breaking the lamp and scattering the burning oil over her.

---At common law, “malice shall be implied when no

considerable provocation appears, or when all the
circumstances of the killing show an abandoned and
malignant heart.”

23
---In this case, it is sufficient that the plaintiff manifested a
reckless, murderous disposition. He may have intended some
other result, but he is responsible for the actual result.

The MPC §210.3. -Manslaughter

(1) Criminal homicide constitutes manslaughter when:
(a) it is committed recklessly; or
(b) a homicide which would otherwise be murder is committed under
the influence of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse. The
reasonableness of such explanation or excuse shall be determined
from the viewpoint of a person in the actor’s situation under the
circumstances, as he believes them to be.
(2) Manslaughter is a felony of the second degree.

The MPC §212.2(1)(b):

Reckless Homicide Manifesting Extreme Indifference:
“Criminal homicide constitutes murder when: it is committed recklessly
under circumstances manifesting extreme indifference to the value of
human life. Such recklessness and indifference are presumed if the actor is
engaged or is an accomplice in the commission of, or an attempt to commit,
or flight after committing or attempting to commit robbery, rape or deviate
sexual intercourse by force or threat of force, arson, burglary, kidnapping or
felonious escape.”

This provision reflects the judgment that there is a kind of

reckless homicide that cannot be distinguished in grading terms
from homicides done purposely or knowingly.

Commonwealth v. Malone, PA Supreme Court, 1946

The defendant suggested to the decedent that they play
“Russian poker”. He loaded a bullet into the gun chamber first
to the right of the firing chamber and he alleged that he did not
expect the gun to go off. He put the revolver against Long’s
head and pulled the trigger three times resulting in a fatal blow.

---The court held 2nd degree murder—“When an individual

commits an act of gross recklessness for which hhe must
reasonable anticipate that death to another is likely to result, he
exhibits” a depraved heart. In this case, the defendant’s act
showed a wanton disregard for the consequences.
---One who is aware that he is taking a substantial and
unjustifiable risk to human life, but proceeds anyway,
manifests the indifference to the value of human life that
constitute malice aforethought; one who should be aware of
the risk, but is not, is negligent.---

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(b) Felony Murder and Misdemeanor Manslaughter

The Rule: at common law, a person is guilty of murder if he

kills another person during the commission or attempted
commission of any felony. It applies whether a felon kills the
victim intentionally, recklessly, negligently, or accidentally
and unforeseeably. Thus, there is strict liability.

Jurisdictions apply a series of limitation to modify the

felony murder rule.
1. foreseeability
2. duration
3. dangerousness
4. merger rule
5. as to the identity of the killer and victim

People v. Stamp, CA Court of Appeal, 1969

An appeal for the conviction of murder for Carl Honeyman
who, suffering from heart disease, died between 15 and 20
minutes after Stamp and accomplices held up his business.
Doctors noted that he had advanced heart disease, he did not
take care of his body, and that an immediate upset to his system
caused the heart attack.

---A felon is held strictly liable for all killings committed by

him or his accomplices in the course of the felony.
---No intentional act is necessary other than the attempt to or
the actual commission of the robbery itself. There is no
requirement that the killing occur while committing or
engaging in the felony.

People v. Washington, CA Supreme Court, 1965

The defendant was convicted of murder for participating in a
robbery in which the victim of the robbery killed his
accomplice. The plaintiff shot the accomplice when he was
held at gunpoint.

Can a robber be convicted of murder for the killing of any

person by another who is resisting the robbery?

---When a killing is not committed by a robber or by his

accomplice but by his victim, malice aforethought is not
attributable to the robber, for the killing is not committed by
him in the perpetration or attempt to perpetrate robbery.

25
 ---To invoke the felony murder doctrine when the killing is not
committed by the defendant or by his accomplice could lead to
absurd results.
---Accordingly, for a defendant to be guilty of murder under
the felony-murder rule the act of killing must be committed
by the defendant or by his accomplice’s action in
furtherance of their common design.
---Dissent: the purpose of the felony-murder rule is also to
deter people from undertaking inherently dangerous felonies
in which killing is reasonable foreseen. Robbers have certain
controls over what they are doing.

The majority holds that when a killing is not committed by a robber

“malice aforethought is not attributable to the robber, for the
killing is not committed by him.” On the other hand, the majority
states that robber initiating gun battles may be “guilty of murder if
their victims resist and kill,” without resort to the felony murder
doctrine.

Second Degree Felony Murder:

-Many states impose this liability under the felony-murder rule
for other felonies that are not part of any enumerated legislative
list but are dangerous enough to justify invocation of the
felony-murder rule.

People v. Patterson, CA Supreme Court, 1989

Two women with the defendant in a hotel room. All drank and
did cocaine. The defendant supplied the cocaine, but, one of
the women died of cocaine intoxication.

---Courts must decide if the felony is inherently dangerous:

there is a high probability that its commission will result in
death.
---There is no mental component in second-degree felony
murder.

The inherently-dangerous limitation brings felony-murder very close to the

extreme-recklessness concept of malice. A felony the commission of which
is likely to result in death is a crime the commission of which is apt to
demonstrate the “wickedness of disposition, hardness of heart, cruelty,
recklessness of consequences and...mind regardless of social duty” that
constitutes depraved heart murder.

Merger of Homicide and Other Crimes:

---Without the merger rule very manslaughter would be
murder.

26
 ---Independent felony requirement—there must be a felony that
is independent of the murder.

Smith Case:--Refer to Supplement

Smith a homeless drug addict set a fire in an abandoned
building for warmth. The fire spread and burned the building,
subsequently, a firefighter was killed when he attempted to
enter the building and fell through the floor. Smith was
charged with murder.

Was Smith guilty of arson and can that be merged to create a

charge of murder?
---If he is guilty of arson then he could be guilty of felony
murder.
---How is the killing a furtherance of a felony?

In many states, the felony-murder rule does not apply if the underlying
felony is an offense that is an “integral part” or is “included in fact”
in the homicide itself. In such circumstances, the felony is not
sufficiently independent of the death and, therefore, merges with it.
For purposes of the felony-murder rule, such a felony disappears; it is
subsumed by the homicide.

The Model Penal Code recommends the abolition of the felony-

murder doctrine, but “as a concession to the facilitation of proof,”
“creates a presumption of the required recklessness and extreme
indifference…if a homicide occurs during the commission or
attempted commission of [or flight from] robbery, sexual attack,
arson, burglary, kidnapping, or felonious escape.”

The Death Penalty:

Generally, a defendant is not eligible for the death penalty unless he/she is
convicted of the state’s equivalent of first-degree murder. The prosecutor
must prove a higher degree of murder in a special proceeding, usually called
the “penalty trial”.

Model Penal Code §210.6—Sentence of Death for Murder

(2) Determination by Court or by Court and Jury
The court shall conduct a separate proceeding to determine whether the defendant should be
sentenced for a felony of the first degree or sentenced to death…In the proceeding evidence
may be presented as to any matter that the Court deems relevant to sentence including but not
limited to the nature and circumstances of the crime, the defendant’s character,
background, history, mental and physical condition and any aggravating or mitigating
circumstances…If the jury is unable to reach a unanimous verdict then the Court shall
dismiss the jury and impose sentence for felony of the first degree.

27
 (3) Aggravating Circumstances
(a) The murder was committed by a convict under sentence of imprisonment
(b) The defendant was previously convicted of another murder or of a felony involving
the use or threat of violence to the person.
(c) At the time the murder was committed the defendant also committed another murder
(d) The defendant knowingly created a great risk of death to many persons
(g) The murder was committed for pecuniary gain
(h) The murder was especially heinous, atrocious or cruel, manifesting exceptional
depravity
(4) Mitigating Circumstances
(a) The defendant has no significant history of prior criminal activity
(b) The murder was committed while the defendant was under extreme mental or
emotional disturbance.
(c) The murder was committed under circumstances which the defendant believed to
provide a moral justification or extenuation for his conduct.
(e) The defendant acted under duress or under the domination of another person
(f) At the time of the murder, the capacity of the defendant to appreciate the criminality or
wrongfulness of his conduct or to conform his conduct to the requirements of law was
impaired as a result of mental disease or defect of intoxication
(g) The youth of the defendant at the time of the crime.

Lockett v. Ohio, United States Supreme Court, 1978

Sandra Lockett was the getaway driver in an armed robbery of
a pawnshop. One of her accomplices accidentally killed the
robbery victim. Lockett did not intend anyone to be killed in
the robbery but state law made her guilty of first degree
murder. Ohio statute only allowed for three mitigating
circumstances.

---The sentencer, in all but the rarest kind of capital case, must
not be precluded from considering, as a mitigating factor,
any aspect of a defendant’s character or record and any of the
circumstances of the offense that the defendant proffers as a
basis for sentence less than death.

Extensions of Criminal Liability: Attempt and Complicity

Attempt:

Punishing Attempted Crimes: Why and How Much?

In some cases, an actor is held fully or partially responsible for offenses that
were, in a sense, never committed. In others, an actor is held vicariously
liable for an offense truly committed by another. The doctrines permitting
this extension of liability are generally called doctrines of attribution.

28
 Today, an attempt to commit a felony is graded as a felony, but typically is
treated as a lesser offense than the substantive crime. Usually, the penalty
for an attempt to commit a capital crime or an offense for which the penalty is
life imprisonment is set at a specific term of years of imprisonment. An
attempt to commit a less serious felony is usually punished at one-half of the
maximum allowed for the target crime.

Model Penal Code §5.05 Grading of Criminal Attempt…

(1) Grading. Except as otherwise provided in this section, attempt…[is a crime] of the same
grade and degree as the most serious offense that is attempted….An attempt…to commit
a [capital crime or a ] felony of the first degree is a felony of the second degree.

Since attempt always presupposes a purpose to commit another crime, it is

doubtful that the threat of punishment for its commission can significantly
add to the deterrent efficacy of the sanction.

Other functions of the law remain to be served:

First: When a person is seriously dedicated to commission of a crime, a firm

legal basis is needed for the intervention of the agencies of law enforcement to
prevent consummation. The dilemma for police is that they face the risk that
if they wait the crime may be committed while if they act they may not yet
have a valid charge.

Second: Conduct of the actor may dispose him towards the criminal activity,
not alone on one occasion but on others. Therefore, there is a need for proper
safeguards.

Third: Where the criminal is unable to commit the crime because of a

fortuity in circumstance then his exculpation from the crime would be an
injustice.

Mens Rea of Attempt:

State v. Lyerla, SD Supreme Court, 1988

Lyerla fired three shots at a pickup truck carrying three teenage
girls. One was killed and the others were injured. Charged
with attempted first and second degree murder.

---In order to attempt to commit a crime there must exist in the

mind of the perpetrator the specific intent to commit the acts
constituting the offense. To attempt second degree murder one
must intend to have a criminally reckless state of mind.
---Lyerla did not intend the death of the deceased.
---Second degree murder requires a culpable mental state of
recklessness. One may not intentionally attempt to cause
the death of another by a reckless act.

29
 ---Dissent: An attempt to pull the trigger and shoot the gun
is enough. This type of “attempt: and the “dangerous” or
“stupid” act are not at war with one another; they are internally
consistent and can sensibly co-exist.

Model Penal Code §5.01—Criminal Attempt

(1) Definition of Attempt. A person is guilty of an attempt to commit a crime if, acting with
the kind of culpability otherwise required for commission of the crime, he:
(a) Purposely engages in conduct that would constitute the crime if the attendant
circumstances were as he believes them to be; or
(b) When causing a particular result is an element of the crime, does or omits to do
anything with the purpose of causing or with the belief that it will cause such result,
without further conduct on his part; or
(c) Purposely does or omits to do anything that, under the circumstances as he believe
them to be, is an act or omission constituting a substantial step in a course of
conduct planned to culminate in his commission of the crime.

Subjectivism vs. Objectivism:

Subjectivists assert that in determining guilt and calibrating punishment, the

criminal law in general, and attempt law in particular should focus on the
actor’s subjective intentions (mens rea), which bespeak one’s
dangerousness and bad character, rather than on one’s conduct, which
may or may not result in the injury on an occasion. Subjectivists believe that
the act of execution is important only so far that it verifies the actor’s
commitment to carry out a criminal plan.

Objectivists believe that conduct should not be punished unless its criminality
is “objectively discernable at the time that it occurs,” i.e., the defendant’s
acts performed, without any reliance on the accompanying mens rea, must
mark the conduct as criminal in nature.

Actus Reus of Attempt:

People v. Murray, Supreme Court of CA, 1859

The defendant allegedly attempted to contract an incestuous
marriage with his niece.

---Something more than intention is necessary to constitute

the charge of attempt.
---There is a difference between preparation for attempt and
attempt. Preparation consists of devising or arranging in the
means or measures necessary for the commission of the
offense. The attempt is the direct movement toward the
commission after the preparations are made.

30
Common law distinctions between preparations and attempt:
1. The physical proximity doctrine
2. The dangerous proximity doctrine: greater the crime and nearer the
distance the stronger the evidence for attempt
3. The indispensable element test: indispensable aspect of the endeavor
4. The probable distance test
5. The abnormal step approach: attempt is a step toward the crime that a
normal citizen would not take
6. The unequivocally test: manifestation of an attempt to commit a crime

The Model Penal Code rejects the common law approach. Attempt requires
an act that is a substantial step in the course of the conduct designed to
accomplish a criminal result, and in order to be substantial such an act must
strongly corroborate criminal purpose.

Model Penal Code §5.01—Criminal Attempt

(2) …Without negating the sufficiency of other conduct, the following, if strongly
corroborative of the actor’s criminal purpose, shall not be held insufficient as a matter of
law.
(a) lying in wait, searching for or following the contemplated victim of the crime
(b) enticing or seeking to entice the contemplated victim…to got to the place
contemplated for commission
(c) reconnoitering the place contemplated…
(d) unlawful entry of a structure, vehicle or enclosure…
(e) possession of materials to be employed in the…crime, that are specially designed
for unlawful use or can serve no lawful use…
(f) possession, collection or fabrication of materials to be employed in the commission
of the crime…where the possession, collection or fabrication serves no lawful
purpose.
(g) Soliciting an innocent agent to engage in conduct constituting an element of the
crime

Two questions must be asked to analyze an attempt:

1. Does the case involve a complete or incomplete attempt?
2. If the case involves a complete attempt, is the target offense a “result”
crime (e.g. murder) or a “conduct” crime (e.g. driving while
intoxicated)?

McQuirter v. State, Alabama Court of Appeals, 1953

The appellant was found guilty of attempted rape. He followed
Mrs. Allen and her children down a street and waited for them
to come out of a neighbor’s house.

---An attempt to commit an assault with intent to rape….means

an attempt to rape that has not proceeded far enough to amount
to an assault.

31
 ---The jury must be satisfied beyond a reasonable doubt that
that the defendant intended to have intercourse with the victim
against her will putting he in fear of it.
---The question of intent is for the jury and it must take into
consideration customs and racial differences.

People v. Rizzo, NY Court of Appeals, 1927

The defendant along with 3 others planned to rob a payroll
carrier on the way to the bank. The defendants drove around
and looked for the carrier but were unable to find him. The
defendant was convicted of attempted first degree robbery.

---The law considers only those acts as tending to the

commission of the crime which are so near to its
accomplishment that in all reasonable probability the crime
itself would have been committed, but for timely
interference.
--Reversed.

The Abandonment Defense:

People v. Staples, CA Court of Appeal, 1970

The defendant rented premises that were directly above a bank
vault. He brought in equipment and tools to commit the
robbery. The landlord discovered this and turned the
equipment in to the police. The defendant claims that he
abandoned the crime.

---The relevant factor in this case is the determination of

whether the acts of the perpetrator have reached such a stage of
advancement that there can be con exculpatory abandonment.

Model Penal Code §5.01(4)—Renunciation of Criminal Purpose

A complete and voluntary renunciation of criminal purpose…Renunciation is not voluntary
if it is motivated in whole or in part, by circumstances, not present or apparent at the
inception of the actor’s course of conduct, which increase the probability of detection or
apprehension or which make more difficult the accomplishment of the criminal purpose.
Renunciation is not complete if it is motivated by a decision to postpone the criminal
conduct until a more advantageous time or to transfer the criminal effort to another but
similar objective or victim.

The Impossibility Defense:

One who intends to commit a crime, but who fails to consummate it because
of a circumstance of which the person is unaware, is as dangerous as one who
successfully commits a crime or who does not commit it because eof police
intervention.

32
 A person is guilty if the attendant circumstances were as he believed them
to be. (i.e. one believes that he is receiving stolen property that is actually not
stolen).

A person is guilty when he has performed an act with the purpose of causing
or with the belief that it would cause such a result without further conduct
on his part. (i.e. a person shoots another who is already is dead believing that
he is not dead).

If a person is arrested before he completes the last act, but after the
commission of a substantial step then he will be convicted because he
performed acts that under the circumstances as he believed them to be the
act was done.

Thus, one may convicted under the Model Penal Code on the basis if
circumstantial evidence of criminal purpose.

Complicity:

The Accessorial Act:

Two theories of Complicity:

1. A person may be held accountable for the conduct of
another person if he assists the other in committing an
offense.
2. A person may be held liable for the conduct of a co-
conspirator who commits a crime in furtherance of the
agreement. Assistance in the commission of the crime is
not necessary.

Accomplices: persons held liable for aiding or encouraging the

offense of another. It is said that complicity is not a crime, but a way
of committing a crime. In cases of complicity liability for
wrongdoing flows from the accomplice’s relationship to the
perpetrator. Moreover, the relationship of complicity is always
voluntarily undertaken rather than imputed based on earlier
association.

Aiding and Abetting: to aid by presence, actual or constructive, and

incitement, and that to aide means not only actual assistance, the
supplementing of another’s efforts, but also presence for the purposes
of such actual assistance as the circumstances may demand or admit
of, and the incitement and encouragement which the fact of such
presence for such purposes naturally imports and implies.

33
Pace v. State if Indiana, Supreme Court of IN, 1967
Appellant was driving across state, and Rootes was with him.
The appellant picked up a hitchhiker; subsequently Rootes was
robbed while the appellant said nothing.

---In the absence of anything in his conduct showing a

design to encourage, incite, aid, abet or assist in the
crime, the trier of facts may consider failure of such
person to oppose the commission of the crime in
connection with other circumstances and conclude
therefrom that he assented to the commission of the
crime, lent his countenance and approval thereto and
thereby aided and abetted it.

Murray v. Commonwealth, Supreme Court of VA, 1969

Grace accosted Coltes, knocked him down and robbed. Murray
watched and was charged with second degree robbery of an
individual.

---A person cannot be convicted as a principal in the

second degree—that is, as an aider or abettor—upon
evidence that he was merely present during the
commission of a crime and fled from the scene of the
crime. However, a person can be convicted as a
principal in the second degree upon evidence that he not
only was present, but also committed some overt act—
such as inciting, encouraging, advising or assisting in the
commission of the crime—or shared the prime actor’s
criminal intent.

State v. Tally, Supreme Court of Alabama, 1894

Judge Tally knew that the Skeltons were pursuing Ross. He
knew that a message was being sent to Ross warning him of the
pursuit and he stopped the warning with a message not let Ross
get away.

---It was enough to say that Tally’s aid merely made it

easier for the principal actor to accomplish the end
intended by him and the aider and abettor, though in all
human probability the end would have been attained
without it.
---Although one is absent, murder would have been
committed. So, where he who facilitates murder even
by so much as destroying a single chance of life the
assailed might otherwise have has, he thereby

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 supplements the efforts of the perpetrator, and he is
guilty as a principal in the second degree under common
law.

Common Law:
--There does not have to be a but-for causation of the crime
--The crime must be actually committed
--There must be conviction of the principal

MPC: §5.01(3)—Conduct designed to Aid Another in Commission

of a Crime
A person who engages in conduct designed to aid another to commit a crime
that would establish his complicity under section 2.06 if the crime were
committed by such other person, is guilty of an attempt to commit the crime,
although the crime us not committed or attempted by such other person.

§2.06—Liability for Conduct of Another; Complicity

(1) A person is guilty of an offense if it is committed by his own conduct or
by the conduct of another person for which he is legally accountable, or
both.
(2) A person is legally accountable for the conduct of another person when:
(a) acting with the kind of culpability that is sufficient for the
commission of an offense, he accuses an innocent or irresponsible
person to engage in such conduct; or
(b) he is made accountable for the conduct of such other person by the
Code or by the law defining the offense; or
(c) he is an accomplice of such other person in the commission of the
offense
(3) A person is an accomplice of another person in the commission of an
offense if:
(a) with the purpose of promoting or facilitating the commission of the
offense he
(1) solicits such other person to commit it; or
(2) aids or agrees or attempts to aid such other person in planning
or committing it; or
(3) having a legal duty to prevent the commission of the offense,
fails to make proper effect so to do; or
(b) his conduct is expressly declared by law to establish his complicity
(4) An accomplice may be convicted on proof of the commission
of the offense and of his complicity therein, though the person
claimed to have committed the offense has not been prosecuted
or convicted or has been convicted of a different offense or
degree of offense or has an immunity to prosecution or
conviction has been acquitted.

Mens Rea of Complicity:

Accomplices’ intents are broken down into two categories:

1. the intent to assist the primary party
2. the intent that the primary party commit the offense charged

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and, two states of mind:
1. The intent to assist the primary party to engage in the
conduct that forms the basis of the offense
2. The mental state required for the commission of the offense,
as provided in the definition of the substantive crime.
Almost always, the second mental state may be inferred
upon proof of the first

Wilson v. People, Supreme Court of CO, 1939

Wilson assisted Dwight Pierce in the commission of a burglary
whereby he lifted him into the window of a drug store. Wilson
alleges that he lifted him and then called the police to get back
at him for stealing Wilson’s watch. He contends that he had no
intent to commit burglary.

---For one to be guilty as principal in the second degree,

it is essential that he share in the criminal intent of the
principal in the first degree; the same criminal intent
must exist in the minds of both.
---One who participates in a felony as a feigned
accomplice, in order to entrap the other, is not criminally
liable, and he need not take an officer of the law into his
confidence to avoid and imputation of criminal intent.

The Killing of Yusuf Hawkins:

Modello, after having a conversation with his friend, perceiving

a possible fight, gathered his friends and handed out weapons.
A black boy was in the neighborhood and was chased down by
the group and shot, subsequently, he died. Modello was charged
with aiding and abetting the second-degree murder of the
Hawkins. The jury found Mondello not guilty of second-degree
murder.

---The jury never asked the judge the question of whether an

accomplice could be convicted of murder where he did not
know that another accomplice has a gun an intended to use it.

Hypothetical:
A defendant gives his car keys to someone that he knows
is drunk and tells him to get him a pack of cigarettes at the store.
The person gets into an accident and kills someone.
If the person is convicted if drunk driving then id the
defendant guilty of drunk driving under complicity?
---Under Common Law---N0

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 ---Under the MPC—Maybe
Defenses: Justifications and Excuses:

Defenses--Generally:

The defenses of justification and excuse concede that the actor has committed a
criminal act with the mens rea required by the definition of the crime.
Nevertheless, the actor offers a plausible argument of desert or utility why
he/she should not suffer punishment.

Differences between Justification and Excuse:

1. Wrongdoing:
Justification: the actor fulfilled the definition of a criminal
defense; he/she did no wrong. It denies the wrongfulness of a
conduct.

Excuse: the wrongful commission of the offense when

circumstances limited the voluntariness of the conduct that the
actor is not morally blameworthy. It denies the actor’s
responsibility for wrongful conduct.

2. Legality:
Justification: if legal actors know of the availability of the
defense then they can make responsible choices and conform to
the law.

Excuse: it is premised on the actor’s inability to make a

responsible choice under the circumstances. Thus, the
availability of excuses should not enter into the decisionmaking
of actors.

3. Burden of Proof:
Justification: until the prosecution has proven that the
defendant committed a defense without justification, it is not
established that the defendant broke any law.

Excuse: prosecution must prove that a crime was committed

before an excuse is brought.

4. Third Parties:
Justification: One who assists in the justified commission of
an offense may also avail himself through a defense of
justification.

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 Excuse: One who assists the excused but wrongful
commission of an offense could be liable for the offense as an
accomplice, unless he also has an excuse.

Defenses:
Justification: necessity, self-defense, and defense of
others
Excuses: duress, insanity

Choice of Evils:

The Queen v. Dudley and Stevens, Queen’s Bench, 1884

Four people were in a lifeboat with limited food and water.
They decided, after eight days without food, that the only way
to survive is to kill the youngest. Two people agreed, one did
not, and the victim did not.

---The court rules that there is no defense. One should

sacrifice his own life before taking someone else’s

MPC §3.02—Justification Generally: Choice of Evils

(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself
or to another is justifiable, provided that:
(a) the harm or evil sought to be prevented by the law defining the offense
charged; and
(b) neither the Code nor other law defining the offense provides exceptions or
defenses dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise
plainly appear.
(2) When the actor was reckless or negligent in bringing about the situation requiring
a choice of harms or evils or in appraising the necessity for his conduct, the
justification afforded by this Section is unavailable in a prosecution for any
offense for which recklessness or negligence, as the case may be, suffices to
establish culpability.

State v. Warshow, VT Supreme Court, 1980

The defendants demonstrated outside of a nuclear power plant.
When asked to leave they did not. Subsequently, they were
arrested.

---Necessity:
1. there must be a situation of emergency
arising without fault on the part of the actor
concerned
2. this emergency must be so imminent and
compelling as to raise a reasonable
expectation of harm, either directly to the
actor or upon those he was protecting

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 3. this emergency must present no reasonable
opportunity to avoid the injury without doing
the criminal act; and
4. the injury impending from the emergency
must be of sufficient seriousness to
outmeasure the criminal wrong

Summary of Justification:
1. there must be a triggering event—the defendant cannot be at
fault in the triggering event. If he is then he is guilty of
creating the situation
2. Was the response Necessary? At Common Law—there has
to be imminent harm. Under MPC—the act must be
necessary
3. Was the response proportional to the Danger? For self-
defense no deadly force can be used on a non-deadly threat

Self Defense:

State v. Leidholm, ND Supreme Court, 1983

A wife stabbed her husband to death after an argument. They
had an unhappy marriage at the time.

---Conduct that constitutes self-defense may be either

justified or excused.
A person who believes that the force he uses is
necessary to prevent imminent unlawful harm is
justified in using such force if his belief is a
correct belief; that is to say, if his belief
corresponds what actually is the case. If, on the
other hand, a person reasonably but incorrectly
believes that the force he uses us necessary to
protect himself against the imminent harm, his
use of force is excused.
---The test of deadly force is limited to situations
in which its use is necessary to protect the actor against
death or seriously bodily injury. The actor must not be
able to retreat from the assailant before deadly force is
necessary.

MPC §3.09 Mistake of Law as to Unlawfulness of Force or Legality

of Arrest; Reckless or Negligent Use of Otherwise Justifiable Force;
Reckless or Negligent Injury or Risk of Injury to Innocent Persons
(1) The justification afforded by sections 3.04 to 3.07, inclusive, is unavailable when:

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 (a) The actor’s belief in the unlawfulness of the force or conduct against which he
employs protective force or his belief in the lawfulness of an arrest which he
endeavors to effect by force is erroneous; and
(b) His error is due to ignorance or mistake as to the provisions of the Code, any
other provision of the criminal law or the law governing the legality of an arrest.
(2) When the actor believes that the use of force upon or toward the person of another
is necessary for any of the purposes for which such belief would establish a
justification under Section 3.03 to 3.08 but the actor is reckless or negligent in
having such belief or in acquiring or failing to acquire any knowledge or belief
which is material to the justifiability of his use of force, the justification afforded
by those sections is unavailable in a prosecution for an offense for which
recklessness or negligence, as the case may be to establish culpability.
(3) When the actor is justified under section 3.03 to 3.08 in using force upon or
toward the person of another but he recklessly or negligently injures or creates a
risk of injury to innocent persons, the justification afforded by those sections is
unavailable in a prosecution for such recklessness toward innocent person.

People v. Goetz, NY Court of Appeals, 1986

Goetz gunned down four youths when they attempted to rob
him of $5.

---Knowledge that the defendant had about victim

---Physical attributes of the persons involved
---Circumstances---was there a reasonable belief that
danger of death or serious bodily harm was imminent

Common Law Issues of Self-defense:

1. Was there a reasonable belief that imminent danger of death
or serious bodily harm existed where only deadly force was
necessary?
2. Did the person avail himself of all means to avoid physical
combat?
3. Did the person use no more force than was reasonably
necessary under the circumstances?

Insanity and other Defenses:

In order for a person to raise the insanity defense, there must have been
an insane condition at the time the crime was committed. If the person
is insane at the time of the trial then he is incompetent to stand trial.

Two things are required:

1. a mental disease or defect, and/or
2. a. The person could not understand right from wrong
b. The person could distinguish but could not
physically control himself

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