AADIKA SINGH | CRIMINAL LAW FALL 2014 | PROF.

LEO KATZ

The Utilitarian View/ Deterrence

 Utilitarian objective: crime control and overall societal benefit

 Forward looking—Justify pain of punishment on basis of good future consequences it is
expected to produce
o Proportionality: Impose 5 units of pain if but only if it prevents more than 5 units
of pain (crime) that would’ve occurred but for ∆’s punishment
 Classic view (Bentham): a rational calculator will balance expected benefits of crime
against its risks (of detection and conviction + the severity of the likely punishment).
o Punishment turns the balance of profit against the bad act
o even madmen calculate
o marginal deterrence: greater offense should = greater punishment 
give delinquent incentive to stop at the lesser

 Special deterrence—painful punishment deters ∆’s future misconduct by giving him a

clear reminder of the risks of future offending. “Scare him straight.”
 General deterrence—∆ is punished to convince the general community to forego future
criminal conduct. See 3 strikes law enforced and choose not to commit a crime.
 Ex. Utilitarian would advocate greater punishment for a very dangerous but not
particularly blameworthy crime than for a highly-blameworthy but not especially
socially-dangerous crime.

 Criticisms of Utilitarian Approach:

o Assumes would-be offender is rational and doing CBA—what about crimes of
passion?
o Punishing the Innocent Problem: Utils might be ok framing an innocent person for
in order send a deterrent message that crimes cannot be committed w/ impunity.
 Response: not done because CJ system only work if it legitimate
o Disproportionate Punishment Problem:
 Desire for deterrence might suggest severe sentence for low-level offense
o Life sentence for drunk driving good from utilitarian perspective—
often results in severe injury/death, so try to deter it. But this goes
against our (retributivist) notions of justice and may cause
community to lose respect for CJS.
 Might give us a more lenient punishment than we think someone deserves
o deviation from desert undercuts criminal law’s moral credibility,
which undercuts power to gain compliance by its moral authority
o Delay, uncertainty, and ignorance of punishment undermine effectiveness
o Increased punishment can induce more crime than it deters.
 “Income Effect”: If Severe punishment of drug dealer raises his cost of
buying drugs, he may commit more crimes (robbery) to finance habit.
 Very severe penalties reduce likelihood that sanctions will be imposed
at all—witnesses less willing to report crime/cooperate in prosecution,
prosecutors less willing to file highest charges, juries won’t convict.
o Pays insufficient attention to individual dignity and rights + need to create
connection between punishment & moral blame (and our strong intuitions
about what we know is appropriate punishment)
Rehabilitation: a footnote on Utilitarianism
 goal is still to reduce future crime through psychiatric care, therapy, education, training
 correctional system reforms/educates wrongdoer rather than secure his compliance to
laws through fear or “bad taste” of punishment: making him safe to return to the streets
 Criticisms:
o Paternalistic—justifies punishment in the offender’s own name but contrary to
their own expressed wishes (few offenders want to be punished)
o Subjective, discretionary, biased against low-income, minority defendants
o Lead to increased length of confinement, if you can’t be released until “cured”
o Too costly and too lenient?
o Katz Criticism = if offenders know that all they will get as punishment is a magic
pill to “cure” them and it isn’t very unpleasant, it does not deter them.

Incapacitation: another footnote on Utilitarianism

 ∆’s imprisonment prevents him from committing more crimes outside while incarcerated
 a more dangerous offender (evidenced by prior convictions for violent offenses) may be
punished more severely than an ordinary offender for same crime. Ewing.
 Katz Criticism = incapacitation not a very sensible goal in cases of crimes w/ economic
motivations, we may disable the original offenders but others might take their place: we
create an opportunity
o Loss of one gang member may just lead to recruitment of another
 Katz = from a retributivist’s point of view, incapacitation worrisome because it starts to
look like preventive detention
o Can’t punish people for crimes they haven’t/might not commit if released

Retribution
 Punishment is justified when it is deserved—when you do something morally wrong
o Punish the morally culpable whether or not it will result in a reduction in crime
o People may be justly blamed when they choose to violate society’s moral views
(intention more blameworthy than negligence)
o Wouldn’t punish repeat offender more severely on basis of predicted future
conduct. Would also say he has already paid his debt to society for past crime.
Maybe punish because offender blameworthy cuz he should have known better.
 Backward looking—
o focus on the nature and blameworthiness of individual’s past behavior
o should not consider future benefits—a man should be a means to an end
 Proportionality: punishment must be justified by seriousness of offense committed
o Kant: execute the murderer. Punishment should replicate the deed = lex talionis;
still against allowing prisoners to volunteer for medical experiments.
o Moore: Disagrees w/ lex talionis: punish in a way that fits the severity of crime.
just deserts: punishment that a person deserves for having committed a crime.
 Rule out certain types of suffering (torture)
o Must treat offender w/ dignity and a person w/ moral worth
 Negative retributivism: Only the guilty may be punished—guilt a necessary but not
automatically sufficient condition of just punishment
 Positive retributivism: Society has a duty to punish
o guilt is a sufficient condition of just punishment (even if victims don’t want it)
  Degree of punishment: linked to offender’s moral culpability
o Considerations of moral blame might suggest a lenient sentence
o Katz = in Ewing case, retribution would lead to less severe sentence than
deterrence theory but in other cases it could be more severe (where we get no
benefit for punishing but punish anyone on retributivist principles—Chaney case).
 Herbert Morris: just to punish rule violators because they have the benefits of the system
of rules w/out accepting the burdens—thus acquiring an unfair advantage
o So he owes a debt to society and it is fair to exact it by punishment

 Criticisms
o Punishments might do more harm than good, e.g. requiring incarceration of an
offender whose small children will be forced into foster care
o Poorer classes hard-pressed to name the benefits for which they are supposed to
owe obedience. Paying a debt to society? Debt for what?
o Obligatory punishment: Intentional infliction of pain through punishment
senseless and even cruel if it does no good.
o Bizzare results: Would a $1 fine be enough for someone who murders a blind man
to rob him of $1? Should unsuccessful murder attempts not be punished at all?

Cousins Of Retribution
 Fundamentally differernt from retribution—focus less on the blameworthiness of the past
offense than on the harm it caused
 Retaliation and Vengeance
o It is morally right to hate criminals and we can inflict upon them punishments
which express that hate
 Denunciation/Social Cohesion: In a Way Utilitarian & Retributive
o Utilitarian:
 Denunciation educates individuals about what conduct is improper
 Affirms that we value the victim’s worth
 Not punishing subverts social order. Punishing promotes social cohesion.
o Retributive:
o Denunciation announces that wrongdoer deserves punishment
o Expresses society’s condemnation and stigmatizes offender
o Shows him and others the moral significance of their actions

Mixed Theories—Retribution And Utilitarianism Combined

 One solution—permit sentencing authorities to decide ad hoc what the circumstances
seem to warrant—is this just a lack of a theory?
 H.L.A. Hart: Classic Mixed Theory:
o Can argue that aim of punishment is utilitarian—to deter unwanted behavior
 But can justly punish only w/in retributive limits to determine whether and
how much to punich: never punish an innocent or disproportionately
 seriousness of the offense sets an upper limit to permissible punishment
 Criminal homicide statutes enacted to deter unjustified killings but ∆ can
only be punished if morally blameworthy (might not be if mentally ill).
 And if blameworthy, punishment should be proportional to what he
deserves (retri), not his future dangerousness (util)
 o Retributivism sets range of severity of proportional punishment: punishment
below range too little and punishment above range too much  within that range,
utilitarian factors may properly be applied (punish only if would produce world
w/ less crime)

o Strong support in criminal law

o Foundation for SCOTUS’ death penalty jurisprudence
o “Gregg. v. Georgia—SCOTUS said, “In order for punishment not to violate the
8th Amendment, must not involve the unnecessary and wanton infliction of pain
[utilitarian requirement] and must not be grossly out of proportion to the severity
of the crime [retributive constraint].

o Challenge To Classic Mixed Theory

o How prevent upper limit on punishment from becoming wavering and uncertain?
 Where should we look for the upper limit? Public surveys? Legislators?
 Difficult to know/control which details of offense/offender inform
decision-maker’s assessment of desert.
 Racial bias, fear, disgust can shape desert assessments
o State v. Chaney. If we could successfully pretend to punish a rapist/robberer and
an accident happens to dampen his sexual desire such that he presents no danger
of rape and inherits a lot of money so that he no longer needs to rob: no longer
needs to be incapacitated, deterred, or rehabilitated. And we avoid costs to state
for punishing him. Does mixed theory still require that he be punished? No. If it
does, we have to give up the mixed theory. Strict retributivists would punish.
o In response:
 Combine rationales of punishment in more flexible ways—so that desert
alone will sometimes be sufficient to justify the imposition of punishment.
 Is the relative indeterminacy of such approaches a drawback?
 Although the “classic” mixed approach holds a strong position in criminal
law theory and in the law itself, criminal law and doctrine tend to be
eclectic or pluralistic.

I. General Principles & Sources of Criminal Law

A. Burden of proof for criminal conviction: Due Process Clauses (5th Amendment
applies in the federal system, 14th Amendment applies to the states) requires
prosecutor to persuade the fact finder “beyond a reasonable doubt of every fact
necessary to constitute the crime charged.” Must prove every element of offense.
1) ∆ bears burden of producing evidence pertaining to affirmative defenses
(usually a preponderance-of-the-evidence standard).
B. Constitution provides that a person may not be:
1) punished twice for the same criminal offense
2) punished retroactively
3) subjected to cruel and unusual punishment
C. Generally, judges creating new crimes—a thing of the past. But common law can
be used to fill in gaps in a penal code.
D. Rationale: Legislators viewed as more immediately subject to the will of the
people (judges appointed and hold office for life).
 1) Because criminal laws intimately affect the lives of citizens and are
intended to represent the moral values of the community, judges believe
they should defer to wishes of the public as represented by legislature.
E. Exception: Courts will strike down statutes that are unconstitutional.

F. Three principles limit the imposition of punishment

1) Legality = right to fair warning of the nature of the conduct declared to
constitute an offense
2) Proportionality = to differentiate on reasonable grounds between serious
and minor offenses
3) Culpability = to safeguard conduct that is w/out fault from
condemnation

Defining Criminal Conduct—The Elements Of Just Punishment

Legality

1. Constitution: Ex post facto laws prohibited (for Congress and states). No retroactive
punishment. A person may not be punished unless her conduct was defined as criminal
before she acted by legislation, rather than judicial crime creation.”
a. Definition: 1) makes conduct criminal that was not criminal at the time
committed, or 2) increases the degree of criminality or 3) increases the maximum
punishment beyond what it was at the time committed.
b. Rationale: statutes must give fair warning about what is prohibited
c. Ex: creation of new statute of limitations applying retroactively impermissible
2. Vague statutes: Legality principle requires that unreasonably vague criminal laws can’t
be enforced.
a. Because don’t give fair warning to reasonable person & are susceptible to
arbitrary/discriminatory enforcement (applied to target entirely innocent activity).
3. Lenity principle: Interpretation of ambiguous statutes should be biased in favor of the
accused (common law view, not Const). More narrow view: principle just a tie breaker).
a. DIVERGENCE: MPC 1.02. Does not recognize lenity principle. Criminal
provisions should give fair warning and ambiguities should be resolved w/ view
of legislative purposes.
 Keeler v. Superior Court, Supreme Court of California, 1970

∆ kneed his ex-wife in the stomach, killing her fetus.

 ∆ prosecuted for murder which was defined by statute, as at common law, as the
“unlawful killing of a human being, with malice aforethought.”
 Absent evidence to the contrary, court assumed that 1850 legislature intended the term
“human being” be defined in common law terms.
Holding: a fetus born dead was not a “human being” under the common law and so could not
be a basis for modern day prosecution.
Maxim of statutory interpretation: when a statute contains a common law term, presumption
is that such a term retains its common law meaning, absent statutory definition to the contrary.

 Vagueness: Due process clause requires “fair warning” of what constitutes the crime at
the time of the offense. Unreasonably vague statute where reasonable people could not
tell what conduct was forbidden would violate DPC :
o Connally: “a penal statute creating a new offense must be sufficiently explicit to
inform those who are subject to it what conduct render them liable”
o Keeler Ct: Prosecution asking us to do what a Legislature cannot do, as in Bouie

Bouie v. City of Columbia, 1964:

 Two black men (∆s) sat in the restaurant section of S.Carolina drugstore. No notices
posted restricting the area to whites only.
o ∆s refused to leave when asked; were convicted of violating a criminal trespass
statute which prohibited entry on property of another “after notice” forbidding it.
 S.C. Sup. Ct: construed statute to prohibit not only act of entering after notice not to do so
but also the wholly different act of remaining on property after receiving notice to leave.
 SCOTUS: reversed convictions, holding that S.C. court’s ruling was “unforeseeable”:
o If a state legislature is barred by Ex Post Facto Clause from passing such a vague
law, a State Supreme Court is barred by the Due Process Clause from achieving
the same result by judicial construction.
o Katz: DPC doesn’t really say that. DP clause probably meant to prohibit things
that were egregiously unfair (like retroactive lawmaking) so in that sense court
was acting unconstitutionally.

 5th Amendment of Constitution: “No person shall be . . . deprived of life, liberty, or

property, without due process of law.”
 14th Amend of Constitution: “Nor shall any state deprive any person of life, liberty, or
property, without due process of law.”
 Article 1, §9, Constitution: No ex post facto Law shall be passed
 Article 1, §10, Constitution: No state shall . . . pass any . . . ex post facto law.”

Keeler:
 In common civil law, there is a constant revision of the law.
 Only the legislature can make criminal law, not courts
 If a criminal statute not sufficiently explicit, have to look at legislative intent (apply
common law meaning). Would be a DP violation for us to judicially enlarge a statute if
not what Legislature intended.
  Dissent: drowning hypothetical shows: we are interpreting, not changing the law to
discuss the unlawful termination of the front end of life (in drowning hypo, it was the
back end of life).
 As for “fair warning” argument: A decision that determines that a viable fetus is a human
being under those statutes is not unforeseeable

Key Question: Are we making the law or are we interpreting it?

Other Args:
 Viability is relevant to what the 1850 statute meant.
o Majority used legislative history and common law history in absence of
legislative history to determine legislative intent.
o We can also use purpose to get to legislative intent. Who did legislature
intend to cover? Drowned people? Fetuses? Small birds act.
 What else going on here? Abortion rights.
o Afraid that if next case was of a mother who had done this or gotten someone else
to do it, would have a law saying a fetus is a human being and a killing of a fetus
constitutes murder.

Defining Criminal Conduct—The Elements Of Just Punishment

Proportionality

 Requirement that punishment be proportional: appropriate to the crime committed

 8th Amendment prohibition against cruel and unusual punishment: SCOTUS presently
wedded to principle that 8th Amendment requires proportional punishment
 MPC includes among its purposes the goal to differentiate on reasonable grounds
between serious and minor offenses and to safeguard offenders against excessive,
disproportionate or arbitrary punishment—state penal laws state similar things
o Render punishment w/in range of severity proportionate to gravity of offenses,
harm done to victims, and blameworthiness of offenders.
 We believe excessive punishment is unjust but what constitutes excessive punishment?
 Also applies to justification defenses: a person is not justified in using force against
another unless it is “proportional or reasonable in relation to the harm threatened or the
interest to be furthered.”

Rummel v. Estelle, SCOTUS (1980)

∆ cashed fake check worth $121. Offense carried 2-10 yr prison term. ∆ had twice been
convicted of theft (totally $108)  sentenced to life imprisonment under state’s habitual
offender law (eligible for parole after 12 years).
o Grossly disproportionate? No.
o Dissent’s Test: Weigh: 1) gravity of offense compared to severity of penalty, 2)
penalties imposed w/in TX for similar offenses (intra-jurisdictional analysis), 3)
penalties imposed in other jurisdictions for same offense (inter-jurisdictional analysis)
o Majority Applied: 1) offense not petty—state free to draw line subject only to the 8th
Amendment. State could have utilitarian deterrence objective that is not necessarily
affected by violent/non violent nature of offense. 2) & 3) Majority not impressed that
failed these two.
 o Point: Although states are prohibited from inflicting grossly disproportionate
punishment, SCOTUS will almost always defer to a state’s legislature in a non-capital
case.
o Legislatures may constitutionally apply utilitarian factors in setting criminal
penalties even if the process results in retributively disproportional sentencing

Solem v. Helm, SCOTUS (1983)

∆ sentenced to life imprisonment w/out possibility of parole under SD’s habitual offender law
upon conviction of passing a fake check for $100, his seventh conviction. Prior felonies
nonviolent, crimes included three burglaries and driving drunk.
o Grossly disproportionate? Yes.
o Majority applied Harmelin Dissent’s test. 1) severe sentence for minor conduct 2) treated
more harshly than other criminals in SD who committed more serious crimes 3) statute
one of two toughest in the country.
o Distinguished Rummel on ground that TX had relatively liberal parole policy and ∆ here
no possibility of parole absent executive pardon or commutation

Harmelin v. Michigan, SCOTUS 1991

∆ convicted of possessing 672 grams of cocaine. First offense but received statutory mandatory
term of life w/out possibility of parole.
o Harshest penalty for any offense in the state, harshest in nation. Failed Solem test.
o Scalia Majority: no 8th Amendment violation because it does not include a guarantee
against disproportionate sentences. Scalia would have overruled Solem.
o Rejected first two prongs of Solem test as subjective.
o Intra-jurisdictional and inter-jurisdictional appropriate only in the rare case where
a comparison of crime committed and sentence imposed leads to an inference of
gross disproportionality.  Apply 1st prong and if determine offenses was
serious, any penalty short of death is proportional. Apply other prongs only if
offense is petty and sentence severe.
o Here, offense serious so further analysis unnecessary.
o Kennedy Concurrence: Four principles: 1) fixing of prison terms involves
judgment best left to the legislatures. 2) 8th A does not mandate adoption of any
one penological theory, 3) substantial differences in penological theories and
prison sentences are result of living in a federal system, 4) proportionality
analysis should be informed by objective factors.

Ewing v. California, SCOTUS (2003)

Mr. Ewing: stole 3 golf clubs from pro shop worth $399 each; convicted of felony grand theft.
Because previously convicted of robbery and three counts of burglary, sentenced to 25-years to
life under CA’s 3 strikes law.

o Grossly disproportionate and violation of 8th Amendment? No.

o Justice O’Connor: 8th Amendment does not require strict proportionality between
crime and sentence in non-capital offense for which death penalty can be imposed
o It forbids only extreme sentences that are “grossly disproportionate” to the crime.
o Applied Justice Kennedy’s Harmelin concurrence test of proportionality:
 1) the primacy of the legislature, 2) the variety of legitimate penological schemes,
3) the nature of our federal system, and 4) the requirement that proportionality
review by guided by objective factors.

 CA’s 3 Strikes Law aimed at incapacitating and deterring repeat offenders who continue
to threaten public safety
o our tradition is to defer to state legislatures in making such policy decisions
o punishment fit the crime (grand theft) and his long history of felony recidivism.
To avoid impression that he was being punished twice, said: Enough that CA has
a reasonable basis for believing that its sentencing policy will further penological
goals—deterrence (deterrence and incapacitation). Only a problem if CA
legislature had no reason for imposing such a sentence
o Katz: Majority: 8th Amendment does not mandate adoption of any one
penological theory

Concurrence: Scalia—believes that 8th Amendment contains no proportionality requirement.

 A proportionality review (which has to do with retributivism) impossible once the
plurality accepts deterrence, rehabilitation, and incapacitation as legitimate goals
o Majority not established that 25 years-to-life is proportionate for stealing clubs
o So . . . had to add an analysis of protecting society from future crime
o Legislature has every right to consider public safety but that has nothing to do
with proportionality.

 Justice Thomas concurred w/ Scalia’s opinion in Harmelin that the 8th Amendment was
adopted to outlaw certain modes of punishment (drawing and quartering) but was not
intended to guarantee proportionality.

Dissent: Applied Solem criteria and found Ewing’s case very similar to Solem’s. 8th Amendment
violation. Applying even Harmelin test would lead to gross disproportionately result.
 Ewing’s sentence disproportionate in terms of achieving retribution, deterrence (sentence
here overkill), and rehabilitation (ridiculous that this sentence would achieve that).

At time of Ewing, 7 justices on record believing that 8th Amendment prohibits grossly
disproportional sentences of imprisonment but were divided on whether to apply Solem (broad)
or Harmelin (narrow) test.

Point of case:
1) We defer to CA state legislature. As long as it has a legitimate goal of punishment (under
deterrence or retributivist theories), can impose whatever sentence they deem appropriate.
2) 8th Amendment does not require strict proportionality between crime and sentence.
Forbids only extreme sentences that are “grossly disproportionate” to the crime.
3) In non-capital cases, extremely difficult for a ∆ to succeed w/ argument that, under 8th
Amendment, his prison sentence too long compared w/ severity of his offense.

Qs raised by case:
 Does the Constitution impose a retributivist constraint? Isn’t this the kind of law enacted
in the passion of the moment that may trigger the need for judicial review?
 How should proportionality be affected by the prior criminal conduct of the offender?
 Utilitarian argument in favor: initial sanction didn’t work—give him a longer sentence.
  Retribution argument in favor: offender has a greater duty to avoid committing a new
crime after being convicted the first time. Even though this offense is minor, one’s
deserts are more than the sum of its parts.
 Retributivist argument against: Already paid a debt, punishment must fit this crime.

Katz: Cruel and unusual punishment clause can become difficult to justify. What if an offender
volunteered to be subjected to torture in exchange for a reduction in his sentence. Cruel?

Defining Criminal Conduct—Elements Of Just Punishment

Culpability
Malum in se: inherently immoral crime: murder, arson, rape (10 Commandments)
Malum prohibitum: crime only because it is prohibited by statute, though act itself may not be
immoral (jay walking, running a stoplight)

Background rules (actus reus, mens rea, causation, complicity, attempts) are automatic add-ons
to any criminal statute.

Three Sources of Criminal Liability:

1) Actus Reus + Mens Rea by a principal
2) Being an accomplice to a crime
3) Crime not committed but attempted

MPC: Elements of an offense = conduct (act or an omission and its accompanying mens rea),
attendant circumstances, or the result of offense (harm) as
 is included in description of prohibited conduct in the definition of the offense
 establishes the requisite culpability
 negatives an excuse or justification for such conduct
 negatives a defense under the statute of limitations
 establishes jurisdiction or venue

MPC: Material element of an offense: does not relate exclusively to statute of limitations,
jurisdiction, venue, or anything similarly unconnected with the harm incident to conduct that the
law defining the offense seeks to prevent.
 Defenses (justifications or excuses) ARE considered material elements of the offense

Blacks: Attendant Circumstances: Accompanying circumstances; A fact that is situationally

relevant to a particular event or occurrence.

Guilty Thoughts
Common Law and MPC §2.01(1) afford a full defense: no one is punishable solely for his
thoughts.
 Rationale: difficult to distinguish btwn a fixed intention that poses a threat + a hope.

III. Actus reus = culpable conduct

Criminal liability requires an actus reus—the commission of a voluntary act prohibited by law—
and an accompanying mens rea
 The actus reus of an offense consists of 1) a voluntary act, 2) that causes, 3) social harm.
 Social harm = the endangering or destruction of an individual, group or state interest
which was deemed socially valuable.
 Attendant circumstances = social harm of the offense has not occurred unless the
specified attendant circs are present, e.g. burglary = the “breaking and entering” of the
dwelling house of another at nighttime  to be guilty, dwelling must belong to someone
other than the actor, and events must occur at night (itals are attendant circs)

 Even if not explicitly provided for in a statute, a voluntary act requirement is viewed (by
courts) as an implicit element of criminal statutes. Martin v. State. Court interpreted the
word “appears” in a statute to presuppose a voluntary appearance in public.

Two Components: The Act and its Voluntariness

The Act
 A bodily movement, a muscular contraction. Holmes.
o Pulling trigger of a gun, raising her arm, turning the ignition key in a car.
o Involves physical, not necessary visible behavior (movements of vocal cords)
o Excludes thinking about or developing an intention (mental acts).
 Sometimes have bodily movement but no “act” by the person whose body was moved
o E.g. A grabs B’s arm and swings it into C’s body 
 B hasn’t acted voluntarily/involuntarily, even though her arm has moved
 MPC Definition: an act = bodily movement whether voluntary or involuntary.

Voluntary Affirmative Act Requirement

“a willed bodily movement” that pertains to the offense charged
 involuntary act defense = ∆ concedes that his own body made the motion but he denies
responsibility for it.
o “My arm came up.” as opposed to “I raised my arm”
o Choice/Will. Voluntary act requires the use of the human mind, involuntary act
requires the use of brain, without the aid of the mind.
o Sitting passively in a car while it runs people down is no act at all.
o Epileptic seizures = ∆’s body, but not ∆, the person, caused the impact.
o Different when ∆ “wills” her arm to move—then she, not her arm, caused injury.

Bratty v. AG (1963) and Professor Murphy (1971)

 Involuntary = like no human action occurred at all
 Involuntary does not mean –
o I was unaware. Changing lanes w/out noticing it, is habitual but voluntary.
o I don’t remember doing it
o I couldn’t control my impulse
o The consequences were unforeseable
o Habitual action done w/out thought (reaching for phone while driving)
 Involuntary also does not mean willfulness or intention.
o Driving too fast and unintentionally killing someone  voluntary
MPC Article 2. General Principles of Liability
Section 2.01. Requirement of Voluntary Act
(1) conduct must include a voluntary act or omission of which he is physical capable
a. if physically unable, you are not liable for failing a duty to act

(2) Not voluntary acts:

a. a reflex or convulsion [about to fall + reaches out to grab someone, seizures];
b. a bodily movement during unconsciousness or sleep [on automatic pilot, not
conscious of what he was doing];
c. conduct during hypnosis or resulting from a hypnotic suggestion;
d. a bodily movement not a product of the effort or determination of the actor, either
conscious or habitual.

MPC Further Explained: Makes a distinction between things done to you and things you do.
2.01(1) ∆ technically carried out acts but someone else manipulated their limbs. (Martin v. State)
- liability can be based on an act or an omission unless person not physically capable

2.01(2):
 Where no one else moved their limbs but whose acts we want to call involuntary.
 most habitual action done w/out thought is voluntary: reaching for ringing phone while
driving because “a product of the effort or determination of the actor”
 A motorist’s unintentional actions are not considered “involuntary” under common law
actus reus requirement or MPC 2.01(2), even if he accidentally kills someone
 Epilepsy. Movements during a seizure indisputably involuntary but prosecution can
establish liability by pointing to earlier acts that were voluntary. Decina.
 Multiple Personality Disorder. ∆s treated as single volitional agents acting voluntarily.
 Sleepwalking Cases: Cogdon (1951). Mom who, while sleepwalking, axed her daughter
to death acquitted. Because act of killing itself was not considered her act at all.
o R. v. Parks: Man killed his mother-in-law and won acquittal by producing
convincing evidence that he had been asleep throughout the episode.
o R. v. Luedecke: ∆ acquitted on charges of forcible rape. Doctor testified re:
history of sleepwalking. “Acted involuntarily during a state of ‘sexsomnia.’”
o R.R.: Woman had sex w/ a boy who climbed into her bed. Claimed to be asleep
 Conviction reversed: though rape of a child a SL crime (no mens rea
req’t), “voluntary act” req’t must be met
 acts of a hypnotized subject always involuntary because helplessness too pronounced
o Common Law: Most jurisdictions haven’t adopted a statutory hypnosis defense.
 Hypnotized actions might still be product of effort/determination of actor.
Even if hypnotized, no one will perform acts deeply repugnant to him.
o Under MPC, if hypnosis self-induced, earlier voluntary act of requesting hypnosis
might convict ∆.
 Cult member allows himself to be hypnotized by a leader known to induce
his subjects to commit crimes while hypnotized.

2.01(2)(d) is the extra category, leaving room for future tough cases where we want to say that
the act, although physically done by the actor, was involuntary (People v. Newton).
  If Martin been drunk but had not been carried by police (no relief under 2.01(1)), he
would have to argue that he was so drunk, it was like he was unconscious. Make it
resemble Newton & fit under 2.01(2)(d).
 Examples = a statute requires acts (A/B/C). A and B were voluntary but C was not but
statute holds you liable for C. OR that multiple elements need to be satisfied but only
some are satisfied voluntarily.
o What if C was the serious one? The one that caused death?
 Our job is to argue both sides, saying that it could go either way for this and that reason,
justified by theory of punishment, legislative intent, etc

Involuntary Act or Insanity Defense? State v. Crenshaw. Man axes his wife to death, cleans
up, and enlists the help of others to dispose of the body—while arguing that he is terribly insane.
 On the boundary zone of 2.01(2)(d)
 We prefer to say that acts were voluntary but excusable under doctrines of defenses.

2.01(3)(a) Where statute tells us otherwise. Envisions things like failing to pay your taxes, not
wearing your seatbelt—omissions backed by a criminal sanction

2.01(3)(b) Other Duties Imposed by Law (special relationship, creation of peril, contract, statute,
voluntary undertaking)

People v. Decina
Seizure involuntary but getting behind the wheel while knowing he had epilepsy was
voluntary.

Facts: While driving, ∆ had a seizure that caused him to lose control and kill 4 people
 Statute: a person who operates a vehicle in a reckless or culpably negligent manner
and kills a human being is guilty of criminal negligence.
 ∆’s driving w/ epilepsy = deliberate and conscious voluntary negligent act
o no matter that having the seizure and crashing into someone was involuntary
o if earlier act of getting behind the wheel was voluntary and led to this
involuntary act of seizing, that is enough = negligent
Rationale: Otherwise would have to acquit a man who freely chose to get drunk and whose
reckless driving caused death because of his unconsciousness or involuntariness during crash
 Different: sudden sleeping spell or unexpected heart attack, w/out prior warning
 Question: if prosecution can defeat the voluntary act requirement by expanding the
time frame, how far back in time should they be allowed to go to find a voluntary act?
 If just applied MPC 2.01(2)(a) with narrow time-frame, Decina would be not guilty.
 Michael Moore approach: ∆ was charged w/ operation of a vehicle resulting in death.
Perfectly appropriate for the prosecution, then, to focus on voluntary acts immediately
preceeding the seizure, the arguably “negligent” operation of the car.
Reasoning probably only applies to dangerous acts like driving, not walking with epilepsy.
 Martin v. State
May be point-blank guilty under statute, but voluntary act requirment must still be met.

Facts: Police arrested drunk ∆ at home and took him to the street where he manifested his
drunken condition by using loud/vulgar language. ∆’s conviction under statute reversed.
 Statute: “any person who, while drunk, appears in public, and manifests a drunken
condition by boisterous conduct or loud/vulgar talk shall be convicted and fined.
Holding: ∆ was involuntarily & forcibly taken into public by arresting officer  not guilty
 Peter Passive: under the statute, even someone forced to swallow alcohol and dragged
out into street could be convicted even though he hadn’t engaged in any conduct at all.
Point: An issue of time-framing: depending on the time frame considered, ∆’s earlier
voluntary act could get him on the hook as in Decina—e.g. got drunk @ home, abused wife
that got police coming to his house in the first place. Does that destroy meaning of volun. act?

Martin Ct. presumes statute includes “voluntary appearance,” does common law lawmaking.
 Keeler is not gospel. Courts not totally prohibited from making criminal law, just easier
for them exonerating—as opposed to criminalizing conduct that wasn’t criminal before.

Mark Kelman
 Courts can choose between narrow + broad “time-frames” in identifying conduct that
must include a voluntary act.
 Decision to frame actor’s conduct narrowly/broadly is based on a court’s desired outcome
o To convict, construct a broad time-frame to include a remote but voluntary act.
o To acquit, construct a narrow time-frame which excludes prior voluntary acts, a la
the Martin Court.
 Martin = Decina if say voluntary act at time #1 (wife beating) posed a risk of (police
arriving + carrying him outside) and caused a harmful involuntary act at time #2 (public
drunkenness, swearing).

Michael Moore
 Must focus on the 1) relevant conduct (performed with the requisite mens rea) that 2)
actually and proximately caused the social harm of the 4) offense charged  determine
voluntariness of it
 Martin’s earlier acts were not the actual and proximate cause of the social harm
proscribed by the statute (manifesting a drunken condition in public).
o Police dragging him out actually + proximately caused the appearing in public
drunk (proscribed conduct). That was involuntary.

 Decina 1) statute prohibited “driving negligently” and killing someone 2) Did driving w/
epilepsy in fact and proximately cause the killing? 3) Yes. So Convict.

Absurd implications of Moore’s approach:

 What if Decina had epilepsy and was driving but ran over/killed someone not while
seizing but because a person just walked in front of the car—a case where we’d hold no
one else criminally liable?
 But we would hold Decina criminally liable because 3) Even though he didn’t seize, he
was driving negligently (driving with epilepsy = negligent). That was voluntary 2)
 Driving caused the result (you could argue), 3) that was prohibited—killing someone
while driving negligently.
o Decina would have to then say: I am rescued by the “in a reckless or culpably
negligent manner” clause—will argue that just having epilepsy while driving is
not driving recklessly.

Martin. Contemporary Applications

People v. Low, Cal. 2010

∆ arrested for stealing a car. Taken to jail, where a search found drugs hidden in his socks.
 ∆ convicted of stolen vehicle offense and “knowingly bringing a controlled substance
into a county jail”
 ∆ invoked Martin to argue that since he had been taken to jail against his will, he had
not voluntarily committed the required act of “bringing” the drug into jail.
 CA. Sup. Ct. distinguished Martin and upheld the conviction.
o “∆ had the clear opportunity to avoid the prohibited act by voluntarily
relinquishing the drugs.”

State v. Eaton, Wash. 2010

 Facts identical to People v. Low.
 ∆ convicted of “possessing a controlled substance while in a county jail.”
 Ct. ruled other way than People v. Low: ∆ had no choice than to surrender evidence
that would convict him of another crime.

L.A. Ordinance
Makes it an offense for people to “sit, lie or sleep on any street/sidewalk/other public way.”
 Homeless people sued to enjoin enforcement of ordinance against them @ night.
o Sitting/lying/sleeping are consequences of being human  conduct is
involuntary (humans must rest)  conviction punishes status of being human
o Proved that city had insufficient # of beds
 Ct. of Appeals agreed: “The state may not criminalize status of “being” homeless.
 Dissent: ordinance doesn’t target status of “being homeless.” It targets conduct—
sitting/sleeping/lying on sidewalks
 Courts divided on this.
 People v. Newton
Involuntary unconsciousness is a complete defense to liability. (MPC 2.01)(2)(b)

Facts: ∆ was in an altercation w/ cop, was shot himself in abdomen, and claims he became
unconscious so he doesn’t remember shooting cop.
Holding: When not self-induced, as by voluntary intoxication, unconsciousness is a complete
defense to the charge of criminal homicide. Unconscious  not voluntarily acting
 Unconsciousness can exist when a ∆ physically acts but is not conscious of acting.

Two Cases that Follow Assert Excuses:

∆ says: Although the acts were harmful, I could not have fairly been expected to do otherwise.
I’m an addict. As in Martin, Newton, and Powell, some arguable involuntariness.

Robinson v. California, SCOTUS, 1962

Voluntary act reqt constitutionally mandated; can punish for an act, not a status.

Facts: ∆ convicted under statute that makes it criminal for a person to be addicted to narcotics.
Holding/Reasoning: CA addiction statute violated K’s cruel + unusual punishment clause
because it ignores voluntary act reqt. Can’t criminalize being ill/having a disease
 Prosecution’s evidence: ∆ had scar tissue and needle marks that indicated frequent use
 State law that punishes status of being a drug addict even though he may never have
touched a drug w/in the state
o Punishing someone for an involuntary act like unconsciousness (Newton) or
sickness (Robinson)  unconstitutional
 No evidence of an act at all here.
 Narcotic addiction is a sickness/disease that may be contracted innocently or
involuntarily. No voluntariness here.
o Wouldn’t punish someone mentally ill/having HIV.
o Applying statute: would require punishing someone who had been an addict
since birth, never having voluntary acted.

SCOTUS will likely find unconstitutional any statute that punishes a status (vagrancy,
addiction), rather than conduct  that punish being or a propensity to do something.

Katz = This SCOTUS opinion is defective. We know a criminal statute is never applied alone.
The actus reus principle is always in the background of any statute and must be proved.
 SCOTUS not fully cognizant that it needed to layer the voluntary act requirement on top
of the state statute. If it did, Robinson would have come out differently.

Obviously, one could use needle marks as evidence of using, an act . . .

Katz: Highly unlikely that Robinson didn’t use drugs. How can he complain of the lack of an
involuntary act? There probably was a voluntary act in his case.
 This is an invalid statute (because it could be applied to those who committed no
voluntary act at all)  it can’t be applied to anyone, including me (even though I myself
could be found to have committed a voluntary act).
Defect: SCOTUS didn’t take into account that such a hypothetical person would not exist
because state courts would layer the voluntary act requirement on top of the statute.

Next case explores how constitutionalizing the culpability requirement (voluntary act, being one
element of just punishment) would affect the nature of permissible criminal laws and the scope
of required excuses. As in others, some arguable involuntariness . . .
 Powell v. Texas, SCOTUS, 1968
Disease/illness like alcoholism does not excuse an act from being voluntary.

Facts: ∆ charged under TX statute for being found in a state of intoxication in a public place.
∆ argued that, as an alcoholic (I’m sick), he was powerless not to drink (no control),
powerless not to appear in public drunk  involuntary drinker/actor  no actus reus.

Holding/Reasoning: Guilty. Voluntariness becomes too arbitrary if we say intoxication is an

involuntary part of his “alcoholism disease.”
o No agreement in medical profession that alcoholism is a disease
o Here, not like Robinson status offense because was not convicted for being a
chronic alcoholic but for being in public while drunk.
 TX punishing conduct, not an illness.
o ∆ here was not dragged out as in Martin. He went out there himself.

 Federalism Concerns. We have to limit Robinson to “status punishing statutes”

where there is no act at all. Robinson does not deal w/ question of whether a
particular conduct cannot be constitutionally punished because it is in some sense
“involuntary” or “caused by a compulsion (uncontrollable).”

 To view Robinson otherwise, this Court would, under the auspices of the Cruel &
Unusual Punishment Clause, be drafting every state’s criminal code. C & U P clause
only for extreme cases.

 If the 8th Amendment prevents a state from punishing an alcoholic for the act of
becoming drunk in public, it might also bar punishing a drug addict for possessing
drugs or for committing robbery in order to get the $ to feed her habit.
o Not willing to say, as a matter of law, that drunks are involuntary actors
o But 8th Amend. requires states to draft specific criminal law defenses (insanity,
duress) that exculpate people whose conduct was “involuntary” in some sense.

 Dissent: We cannot punish a sick person.

o essential constitutional defect is the same as in Robinson  punishing
someone for something they are powerless to change
o Sufficient evidence that ∆’s alcoholism caused him to appear in public
involuntarily  punishment unconstitutional

Since Powell, no state court has held that alcoholics couldn’t be punished criminally for public
intoxication, except Minnesota.

MPC
 intoxication does not constitute mental disease which might excuse wrongful conduct
 non self-induced intoxication (taken according to medical advice) is an affirmative
defense if actor lacks capacity to appreciate criminality of his conduct
 actor’s unawareness due to self-induced intoxication immaterial to a finding of
recklessness—if he is unaware of a risk of which he would have been aware if sober

Katz = Powell is good law. With args for ∆s and πs.

 Ct.: earlier voluntary act (taking 1st drink) enough even if ∆ appeared involuntarily.
  Like Martin. 1st act (1st drink) didn’t actually or proximately cause the social harm
proscribed by the statute. It was being a diseased alcoholic that actually and proximately
caused him to keep drinking to the point that he appeared in public. And being diseased is
involuntary.
 Could say both acts were involuntary.
 Could also try to make Powell look unconscious like Newton.

Powell did not overrule Robinson.

 The two cases say: a state may not constitutionally punish for non-acts, i.e. thoughts or
status, even if the thoughts or status are dangerous (like being a drug addict).
 Some act is constitutionally required to punish.
 There should be a constitutional defense to involuntary conduct that is an inevitable
symptom of a status or disease.
o If Powell had been homeless and thus could not avoid being in public drunk, case
could have gone the other way.

Exercises
Powell & Martin
 Similar: both first drinks voluntary.
 Different: Martin was carried out into the street. No voluntary act.
Newton & Powell
 Similar: there was an act (shot someone/went out into street).
 Could you make Powell look so drunk to seem that he was acting unconsciously?
 Dissent in Powell: There often is involuntary movement when addicted—like involuntary
movement when unconscious (Newton).

Exception to the Voluntary Act Requirement:

 MPC 2.05. Violations: offenses for which maximum penalty is a fine/civil penalty unless
a court determines that applying 2.01 is “consistent w/ effective enforcement of the law
defining the offense.”
 Driver who blacks out and fails to stop at a stop sign may be convicted of a driving
violation in absence of any voluntary act (even this debatable).
 Rationale: don’t want litigation of involuntary-act claims to undermine effective law
enforcement

Time Framing Issue

 Prosecution does not need to show that every act or even the ∆’s last act was voluntary
 Sufficient that the ∆’s conduct included a voluntary act.
 If we go back far enough we can likely find voluntariness so no act is ever involuntary.

Rationale for Voluntary Act Requirement:

1) Utilitarian: Law cannot deter involuntary movement.
a. But threat of punishment can deter her behavior in the 1st place—take medication
or not drive so as to reduce risk to others from her involuntary acts.
b. Could justify segregation of those prone to repeated involuntary acts.
2) Retributivist: respect for human autonomy
a. Should punish those who deserve it—who act as a result of free choice (can’t
punish status or illness)
Burden of Proof: Voluntary act is an element of a crime, not simply a defense to it.
 State carries burden of proving every element, including that ∆’s conduct was voluntary.
 ∆ doesn’t have to prove involuntariness as an affirmative defense.
 If state can’t prove  acquit

Possession Crimes
 Do not necessarily ignore voluntary act requirement
 Most courts interpret possession offenses to require proof that
1) the ∆ knowingly procured or received the thing she is charged with possessing
(a voluntary act must be proven), or
2) that she failed to dispossess herself of the thing after she became aware of its
presence (here, “possession” is equivalent to an omission)
 All this is true even when the statute is silent on the subject.
 Do not have to know that the thing you possessed is illegal (mistake of law is no excuse).
 Simple case where possession is an act: Buying an illegal item (gun, drugs) and putting it
into coat pocket. She takes possession and possession clearly an act.
 Not guilty if gun was planted on her and she didn’t have sufficient time to terminate her
possession after she learned of its presence.

MPC Article 2. General Principles of Liability

2.01. Possession as an Act
Possession is an act 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.

MPC COMMON LAW

possession can satisfy AR requirement of
2.01(1) only when ∆ was aware of his control
of the thing possessed for a sufficient period to
have been able to terminate his possession
Not all courts agree. State v. Bradshaw.
Commercial truck driver found w/ marijuana
hidden among cargo. No evidence that truck
driver was aware. Convicted for possession of
illegal drugs, rejecting argument that
awareness is inherent in concept of possession.
Ct.’s approach would support conviction even
if ∆ sat passively in truck while a smuggler hid
drugs on it. Is there any act here at all? Could
also analyze this as an omission.

Omissions = failure to act when you have a duty to act creates omission liability

(1) Generally, no liability for omissions (no criminal law duty to prevent harm to another,
even if can do so at no risk to self, and even if person may die w/out help) . . .
(2) Five exceptions, where the omissions become more like an act—special relationship,
creation of peril, contract, statute, voluntary taking on the care
(3) Rationale: individual liberty interests and problems w/ line-drawing
MPC Article 2. General Principles of Liability
2.01. Omission as Basis for Liability
“a failure to act when there is a duty to act”
A person is not guilty of an offense unless his liability is based on conduct which includes a
voluntary act or the omission to perform an act of which he is physically capable . . .

Liability for commission of an offense can’t be based on an omission unless:

(1) the omission is expressly made sufficient by the law defining the offense [a penal statute
specifically requires a particular action to be performed, having to pay taxes]; or
(2) a duty to perform the omitted act is otherwise imposed by law [law of torts or some other
law imposes a duty to act].

Exceptions Explained—where common law duty to act to prevent harm to another exists at
risk of criminal liability (assuming that ∆ was physically capable of performing the act):

1. Statutory duty.
a. Some statutes directly criminalize omissions (crime to fail to pay taxes)
b. Legislatures can create statutory exceptions to the no duty rule and have,
imposing criminal liability for not meeting that duty:
i. created duty to report rapes, child/elder abuse, DV, environment +
financial crimes; to render aid
b. Collateral statutes that create a duty at risk of criminal or civil penalty. But
harm that resulted was more severe than harm for which statute was created
(duty to call for help when in an accident. Violation of statute ordinarily a
misdemeanor might turn into basis for manslaughter if person dies).
i. Look at duty statute creates, conduct that violates it + resulting harm
1. To Whom Does the Statute Apply? This class of ∆?
2. Was resulting harm of the kind statute guarding against?
3. Does statute otherwise provide a suitable punishment/fine?
ii. Statutory violation could be seen as totally irrelevant or as good
evidence of criminal culpability (liable for the actual harm (murder)).

Other Special Legal Duties to Act

b. Where ∆ stands in a special status relationship to the person in peril: duty to prevent
harm or to aid the person in peril
a. Founded on the dependence of one party on the other, or on their interdependence
b. Include: master/servant, innkeeper/guest; married couples (+ unmarried
couples who lived together for many years); parents/children (+ temporary
guardians/caretakers who take on parental responsibilities)
c. Liable based upon relationship and duty to furnish necessities/protect:
i. mother who allows her kids to stay w/ father, knowing he is abusing them
ii. parents who fail to give food/medical care to child liable for murder or
manslaughter
d. No automatic duty between siblings or parents to their adult children or adult
children to their parents, even when parents are unable to care for themselves
e. Tougher cases:
i. Mutual dependence relationships: two mountain climbers (where one falls
into crevasse even if other climber did not create peril), two roommates
 ii. Dating relationship or a friendship. Length of relationship or cohabitation
might make the relationship look more spouse-like.
iii. Stepparents/live-in boyfriends have duty if they are acting as the
functional equivalent of a parent in a familial or household setting. People
v. Carroll. Stepmother convicted of child endangerment for failing to
prevent her husband from killing his daughter. Rejected by State v.
Miranda. Live-in boyfriend failed to protect a baby from his girlfriend, the
child’s mother. SCOTUS upheld conviction, ruling he had a family-like
relationship w/ the mother and had assumed responsibility for the children.
But then SCOTUS overruled its original decision in a subsequent appeal.
“Parental liability should not be extended, on a case-by-case basis, beyond
the clearly established legal categories of a parent or legal guardian.”
iv. Dan Merkel: law should rely on functional relationships
v. When parent is herself a victim. Yes, a mother has a duty to protect her
minor children from abuse by a third party. But duty to take protective
actions unclear when she herself is victim of that third party.
Commonwealth v. Cardwell. ∆’s husband and her daughter’s stepfather
beat ∆ and sexually assaulted her daughter. He kept a gun.
1. Court: ∆ did not do enough to prevent harm (all she did was
express anger to husband and tried but failed to move daughter to a
relative’s house—house burned down).
2. The affirmative performance required cannot be met simply by
showing any step at all toward preventing harm, however
ineffectual. A person charged with duty of care is required to take
steps that are reasonably calculated to achieve success. Strict
duress defense requirements not met.
vi. What is the extent of the duty imposed by that special relationship?
Landlord/tenant. Upkeep of building? Calling police?

c. Where one has assumed an implied or express contractual duty to care for
another. Should be between injurer + injured party. Could also impose duty where A
has a duty to B and we can argue that B has a duty to C so A has a duty to C.
f. Liable:
i. if involves a duty to render aid or prevent harm
ii. one who breaches an agreement to house, feed, medical care to an infirm
stranger, or to care for one’s mentally/physically disabled parent;
iii. babysitter has an implied contractual duty to protect her ward;
iv. doctor has a duty to provide ordinary medical care for her patient
g. K need not be between ∆ and the victim: lifeguard hired to patrol a city beach
may be criminally liable if no help a drowning swimmer (perhaps even if
swimmer had no right to be on that beach)

d. Voluntary Assumption of Care + Seclusion: Where one voluntarily commences

assistance to another in peril has a duty to continue to provide aid
h. Rule applies even if omitter had no initial responsibility to rescue
i. Must seclude a victim that is already helpless or in need of aid: actually seclude
(in your home) or prevent others from rendering aid (swim out to someone)
j. If take a sick person into your home but then fail to care, may be liable for a death
k. Particularly true ∆ when leaves a victim worse off
 l. Rationale: allowed helpless victim to rely on her for care and secluded victim so
that others are prevented from rendering aid.
m. ∆ allowed a 92-year old man to die of starvation after agreeing to feed him and
knowing that there was no other way for him to obtain food. Murder.
Commonwealth v. Pestinikas.
n. State v. Williston hypo: Williston prevented the charity from hiring others who
would actually have helped.

e. Where one has created another person’s peril  duty to help

 Principle: whenever ∆’s affirmative act, though w/out his knowledge, imperils
another/his property, and the ∆ becomes aware of creating the peril, he has a duty to take
reasonable steps to prevent the peril from resulting in the harm in question.
o Generally, an omission that creates peril is insufficient for criminal liability
(Ernie, who failed to act to stop the car running down the hill).
o Involuntary act is weak basis for omission liability (seizing + falling on people +
then not helping them)
i. D raped V who jumped into a creek. D did not try to rescue though he was
aware of her peril. Convicted of murder for V’s death for his omission.
 Liable if negligently injures and does not then help  may be liable for death
ii. Arthur: affirmative act of running negligently along the pier probably
enough for criminal negligence but not murder (requires intent to kill or
knowledge that conduct created a substantial risk of causing death).
Difficult to prove that Arthur had that knowledge as he ran along the pier
and knocked into Frank. But easy to prove that Arthur had that knowledge
later, while he watched Frank drown.
1. Imposing a duty to rescue brings creates a more culpable state of
mind and increases Arthur’s liability.
 Less case law but a duty to act could arise from non-negligent risk-creation also.
iii. Few courts held that one who accidentally starts a house fire (therefore
free of liability for initial blaze) may be convicted of arson if (w/ requisite
mens rea) she fails to extinguish fire or prevent property damage.
1. Commonwealth v. Levesque. ∆s accidentally started a fire and
then, despite their awareness of the danger, failed to report it.
Blaze out of control, and 6 firefighters died trying to put it out. ∆s
convicted of arson AND involuntary manslaughter.
iv. Some case law: even one who justifiably shoots an aggressor in self-
defense, seriously wounding him, may have a duty to get medical care
v. This like accidentally locking your coworker in a storeroom, believing it
to be empty. Then you hear movement inside. Of course you have a duty
to rescue once you learn of the peril you have created. Omitting to do that
would render you liable for false imprisonment AND manslaughter. No
excuse that locking the door was entirely lawful and reasonable.
vi. Dorothy standing on pier when Barry accidentally bumps into her,
knocking her into the child, who falls into the water. Dorothy an
involuntary agent. Her body caused the peril to the child. Duty to rescue?
Or is she just a bystander? Depends on how much you make her look like
person above who accidentally locks coworker in.
o. Tough Cases.
 i. A person who voluntarily chooses to place herself in danger. R. v. Evans.
∆ gave heroin to her sister, who self-injected the drug and then overdosed.
∆, though aware of her sister’s life-endangering condition, failed to
summon help. Convicted of manslaughter: duty to recue triggered because
she had “contributed to” creating the perilous situation.
ii. State v. Lisa. ∆ illegally sold a methadone tablet to his girlfriend. She
drank, smoked pot, and passed out in his bedroom. ∆ tried to awaken her
but she was unresponsive. Several friends urged him to call 9-1-1 but he
refused, hoping she would sleep it off. When finally called for emergency
aid the next afternoon, she was still unconscious and had suffered major
brain damage. Died 10 days later. ∆ charged w/ reckless manslaughter for
failing to summon aid at a time when he knew she was in grave danger.
Ct. dismissed case on ground that he had no duty to her.

f. Katz: May be other duties

Jones v. United States, DC Circuit, 1962

∆, friend of a mother w/ a baby. Baby lived with ∆. Mother also lived with ∆ sometimes.
Unclear whether ∆ paid for taking care of baby. ∆ had ample means to provide for baby.
 Did ∆ have a legal duty to care for the baby? Moral obligation not enough.
 Hinges on whether ∆ assumed the care of the child and secluded him from the care of
his mother or whether ∆ entered into a contract with the mother.

Pope v. State, Maryland Court of Appeals, 1979

∆ took mother and baby into her house and fed them and took care of the baby in a variety of
ways. Mother savagely beat her baby, baby died.
 ∆ did nothing to try to protect the baby or call the authorities or medical assistance.
 Statute created felony of child abuse if someone was responsible for the supervision of
a minor child and was accountable for, by commission or omission, abuse to a child.
 ∆’s missions could be viewed as a cause for worsening of child’s injuries that led to its
death—omissions were cruel and inhumane treatment w/in meaning of statute.
o Reluctance here to impose a duty to help even though there was a statute
 Ct: could only be guilty of child abuse if she w/in class of people statutorily specified
 No evidence that she had a special relationship w/ the child: not comfortable saying
this a voluntary undertaking case because mom was always there
 Only Q is whether she had “responsibility for the supervision of the child”
 P: general help (feeding, providing some care) = supervision. Once ∆ undertook to
house, feed, care for the mother and child, she came w/in coverage of the statute.
 ∆: Just because a person believes/has reason to believe parent is not capable of caring
for the child, does not mean that person has responsibility for supervising the child.
 Evidence insufficient to show ∆ w/in class of people who owed a duty to the baby.

Barber v. Superior Court

Patient had a heart attack and was revived by docs and nurses and placed on life-support. Entered
a coma. Tests showed that he had suffered brain damage and would be likely left in a permanent
vegetative state. Family said they wanted “all machines taken off that are sustaining life.”
  Docs removed respirator and other life-sustaining equip. Patient then died. Murder?
 Ct: An omission. No criminal liability for failure to act unless is a legal duty to act. None
here: no duty to provide extraordinary care.
 Traditional approach:
Physician owes a duty to provide “ordinary,” not “extraordinary” care to a patient
o Doc has no duty to continue treatment in a hopeless case, once treatment has
proved to be ineffective. Argument could apply to other special duty cases: have
you heeded reasonable limits to your duty? Yes? No liability.
o There may be a duty to provide life-support in the immediate aftermath of a heart
attack but no duty to continue its use once it has become futile
 Why not call this an act but an excused act?
o Courts cannot create new excused acts (like euthanasia). Only legislature can.
 So court desperate to classify this as an omission (letting die)
o Ct: cessation of “heroic” life support measures is not an affirmative act but a
withdrawal or omission of further treatment.
 Disconnecting is like withholding medication.
 Arg against: This machine was like a pacemaker or artificial organ that
you actively stopped. We would call it an act if an interloper came in to
unplug. What difference does it make that the Doc did it?
 ∆: The identity of the person unplugging does matter. Matters that person
that started treatment is discontinuing it after trying all reasonable efforts.
 Π: Even if you are the one that started the rescue, you can’t reverse course.
It was like you had completed the rescue so unhooking him was like
throwing him back in the water or stabbing him after rescuing him.

Counterfactual Test to Distinguish Between an Act and an Omission:

If ∆ weren’t there, victim would still be dead.
subtract ∆  no difference in victim’s outcome  an act + liable for harm
subtract ∆  difference in victim’s outcome  an omission, no liability
Barber  subtract Doc’s unplugging, no die – so is this necessarily an act?
No. Look at timeframe. If we subtract Doc before plug in in the first place  victim still does.

Airdale v. Bland: Discontinuation of life support is no different from not initiating life
support in the first place. In both cases, doc is simply allowing his patient to die. Omitting to
take a step that might save patient’s life. Not unlawful unless breach of duty to patient. Did
Doc take reasonable measures to attempt treatment?

 “Letting patient die” (omission) w/ her consent permissible in every jurisdiction

 SCOTUS held that individuals have a constitutional right to refuse medical treatment
Vs.
 cases where doc administers a lethal drug, actively to bring patient’s life to an end.
 Act, unlawful.
 Only legislature can enact law to legalize active euthanasia

State v. Fleming: Moves chest to protect it from oncoming car, car hits baby instead. Murderer?
 Prosecution: Actively moved chest that led to baby’s death.
  Defense: Didn’t have obligation to baby—this was just an omission

Question Bank
 An act or an omission? Vicious interloper or Doc making a decision to omit?
 Breach of a special duty? Voluntary undertaking?
o Reasonable completion of duty to help?
 Counterfactual Test
 Time-framing

IV. Mens Rea

 On test, start by analyzing most serious mens rea first

 Except rarely, a person is not guilty of a criminal offense unless the gov’t proves the
actus reus of the crime + the accompanying mens rea (guilty mind)
 No mens rea req’d for violations (non-criminal offenses penalized by fine/civil sanction)
 If no mens rea, may still be liable if offense is one of strict liability
 Narrow definition of mens rea = the particular mental state provided for in the definition
of the offense; the required mental state an actor must have to be culpable
 Utilitarian Argument: punishing one who lacks a guilty mind is ineffective and wasteful;
someone who causes accidental harm poses no danger + not in need of reformation
o BUT . . . his punishment might deter others to be more careful; he might need
incapacitation or a prod to change his behavior
o Levels of mens rea provide a fine-tuned calibration to level of match punishment
w/ culpability
 Retributive Argument: morally unjust to punish those who accidentally, rather than by
choice, cause social harm
o Don’t attach stigma + deprive liberty of someone lacking a culpable state of mind
 Presumption of awareness + intent constitutional only when we can have confidence
that over all criminal cases in general, the presumed fact will always be present when
the fact used to trigger that presumption is present.
o Permissive inferences allowed whenever conclusion is more likely than not to
be true under circs of the case (can presume that possession of recently stolen
property, if not satisfactorily explained, is a situation where jury may infer
that person in possession knew that the property had been stolen)

MPC Provisions on Mens Rea

 MPC functions as a background rule: makes writing legislation easier.
 Legislatures spell out the actus reus and rely on the MPC for mens rea
 We presume that there is a mens rea requirement in any criminal statute UNLESS
legislature specifies otherwise

2.02(1): Except as provided in 2.05 (violations), a person is not guilty of an offense unless he
acted purposely, knowingly, recklessly, or negligently, as the law may require, w/ respect to each
material element of the offense (listed in order of culpability).

2.05. Voluntary act and mens rea requirements need not apply to violations, offenses that can’t
result in imprisonment or probation but may result in crimes.
Purposely. A person acts purposely w/ respect to a material element of an offense when:
 w/ respect to conduct + result elements: it must be ∆’s conscious object to engage in
conduct of that nature or to cause such a result (purpose to shoot at + cause death)
o It was his conscious object to take V’s life but not the lives of the remaining
passengers (although those deaths were “intentional” at common law)
 If the element involves the attendant circumstances, he is aware of the existence of
such circumstances or he believes or hope that they exist
o D enters an occupied structure in order to commit a felony inside. He has
acted “purposely” with regard to the attendant circumstance that the structure
was occupied if he was aware that it was occupied or hoped that it would be.
 If you are practically certain that his desired result won’t occur, don’t have
knowledge of it. Can you purposely do that which you know you cannot do? No
knowledge = no purpose? Not necessarily. An actor might have intention w/out
knowledge.

 Purpose v. Hope (hope or wish is not purpose for purposes of criminal liability):
difficult to distinguish between the two
o Commander sends soldier in for a dangerous mission (has authority to send) +
hopes that X dies so he sends X. Or he repeatedly sends X into harms way
where each instance is unlikely but likely in the aggregate that harm will
befall him.

Knowingly. A subjective test. Whether ∆ actually knew or believed something. ∆ that can show
he is unusually stupid/gullible may escape liability.
MERGE w/ knowledge elements below.

A person acts knowingly with respect to a material element of an offense when:

 w/ respect to conduct or attendant circumstances, knowingly = ∆ is aware that his
conduct is of that nature or that such attendant circumstances exist, AND
o D fired a loaded gun in V’s direction, and was prosecuted for “knowingly
endangering the life of another.” Guilty if he was aware that his conduct
endangered the life of another person (wouldn’t be aware/acting knowingly if he
didn’t see anyone in the vicinity)
o If D prosecuted for “knowingly receiving stolen property,” D would be guilty if
he was aware that it had been stolen.
 w/ respect the result, a ∆ is practically certain that his conduct will cause such a result
o D knowingly killed V’s fellow passengers assuming D was aware that his bomb
would almost certainly kill those on board. Purpose to kill V but also knowledge
that fellows would die.
 Not if D lacked mental faculties or was not subjectively aware that their
deaths were practically certain to result.
o You can’t know something that you believe to be untrue (if you believe the gun is
unloaded, you can’t know it was loaded)

Bright Line Between Knowing + Purpose

1. No bright line. Knowledge + purpose can be made to look a lot like each other
2. Easy case to distinguish knowledge + purpose
 a. plant bomb in carriage, wanting queen to die. Don’t want coachman to die but
expect that will happen.  coachman is byproduct so this is knowledge
b. Kill grandmother b/c it is only way to get money  grandmother is means so this
is purpose
 Ex: What if ∆ blew up a plane in order to displace his competing airline but people
also died?
o Guilty of murder? Probably. In homicide statutes, knowing is enough.
 Knowledge + intent can often be applied interchangeably to the attendant
circumstances. Usually the difference between knowledge + purpose doesn’t matter.
o Burglary statute. What if know that it is a dwelling? Can we also read in
purpose? Yes. See 2.02(a)(ii) (aware of or hoped the attendant circs existed)
 Harder in law of attempts + complicity where difference in knowing/purpose does matter.
o Attempted destruction of plane. Guilty of attempted murder? No? Yes? Because
purpose was to destroy plane but not to kill.
o Same w/ terrorist attack. If you just foresaw that people would die if you bombed
plane, you get “knowing.” But you don’t get purposeful because no intent to kill.

 Purpose: View 1: impute purpose when conduct is an essential means to an end. Like
killing someone for their money. Nothing against the person, just wanted cash. Here,
knowledge would be seen as purpose. Knowledge = purpose
 Purpose: View 2: impute purpose when conduct is not tied into the design of the criminal
attempt. Not a means to an end but a byproduct  knowledge ≠ purpose
 Problem: Difficult to distinguish means and byproducts.

Definition: “reasonable belief” = a belief which the actor is not reckless or negligent in holding

Reasonable Person: Objective standard but courts struggle to not be subjective

 evaluated form perspective of a person in the actor’s situation
 ∆’s unusual physical characteristics (blindness, one-leggedness, just suffered a heart
attack), if relevant to the case, shift the standard to that of a reasonable person w/ that
unusual physical characteristic, but a ∆’s unusual mental characteristics do not
(intelligence, temperament)

Recklessly. A person acts recklessly with respect to a material element of an offense when he
consciously disregards a substantial and unjustifiable risk that the material element exists or will
result from his conduct constituting a gross deviation from the standard of conduct of a
reasonable person
 Dressler: criminal recklessness requires proof that the actor disregarded a substantial +
unjustifiable risk of which he was aware
 Substantial = high probability + degree of harm [shooting a gun at someone from across
the street when you have bad aim meets this due to degree of harm, if not high probab]
 need to consciously disregard a risk to a person but not a specific person
 Note, 2.02(3) does not allow us to read in “negligence” into a statute that doesn’t mention
a mental state but we can read in “recklessness”
o Recklessness viewed as more culpable than negligence
 Example: Manslaughter is the killing of another by an act done w/ the awareness of a
substantial and unjustifiable risk of doing so.
  If grossly negligent driver was aware that he was driving negligently but sincerely
believed that getting to a job interview justified taking the risk of driving that way.
o Harder case but probably convict because a law-abiding person would determine
that the risk was unjustifiable.

Negligently. A person acts negligently with respect to a material element of an offense when he
should have been aware of a substantial and unjustifiable risk that the material element exists or
will result from his conduct—where actor’s failure to perceive the risk involves a gross deviation
from the standard of care that a reasonable person would observe in the actor’s situation.
 Risk-taking is inadvertent (unaware that you are not behaving reasonably)
 Must be more than mere deviation from standard of care that constitutes civil negligence
 Dressler: Should call it a “substantially unjustifiable” risk. Little risk if taken for no good
reason at all could constitute criminal negligence (someone who “just for the hell of it”
takes a tiny risk of causing death to another should be deemed criminally negligent)
o as the gravity and/or probability of harm increases, the more substantial the
actor’s reason for taking the risk must be to avoid criminal negligence
 Examples: Someone driving below the speed limit, the weather is bad. Person loses
control and kills someone. Guilty of negligent homicide?
o Under tort, if not driving as a reasonable person would under the circs  liable
o Under crim, substantial risk = very wild driving and unjustifiable = not trying to
get to the ER but rather to Starbucks  easy criminal negligence case
 Hard cases: if the risk is substantial + justification large OR if the risk is trivial and
justification is also trivial

Canons of Construction:
2.02(3) Culpability required unless otherwise provided. When culpability sufficient to establish a
material element of an offense is not prescribed by law, such element is established if a person
acts purposely, knowingly or recklessly with respect to that element.
 deals with unclear statutes when the statute doesn’t mention any mental state—so we
read into it purposely, knowingly, or recklessly
 Expands Regina v. Cunningham
o View 1: if mens rea for stealing is met, it’s enough to also convict for poisoning
o CT: need mens rea for the type of harm prohibited by the statute in question
o Cunningham uses “maliciously”—what are we supposed to do w/ that?
 View “maliciously”—an ambiguous word—as a blank space and drop in
2.02(3) purposely, knowingly, or recklessly

2.02(4) Prescribed culpability requirement applies to all material elements. If statute mentions a
mental state sufficient for the commission of an offense but is unclear about which material
elements that mental state applies to, read the statute as if that mental state applies to all the
material elements of the offense, absent a plainly contrary purpose of the legislature
 Does not help us if two different mental states appear in the statute but there are more
than two material elements. Which state to apply to 3rd and other elements? Tougher case
where courts go different ways.
 Ex: “knowingly restrain another unlawfully” would have to know that he was restraining
someone and know that he was doing so unlawfully
  Courts generally conclude that a mens rea element applies in a “forward,” but not
“backward” direction, e.g. “A person is guilty of a felony if he [does x] with the intent of
[causing Y and Z].” Here, “intent” probably modifies Y and Z, but not X.
 Contrary purpose possible: If a single mens rea term is placed by drafters in the middle of
the statute.
o “enter an occupied structure with purpose to commit a crime therein”  drafter’s
intention was not to require “purpose” with respect to “enter an occupied
structure”
o BUT under 2.02(3) some mens rea is required with respect to each material
element: he could only be convicted if he entered an occupied structure purposely,
knowingly, or recklessly with the purpose of committing a crime inside
 Could NOT be convicted if he believed the structure was unoccupied
based on a negligent belief

2.02(5). Higher = lesser. If lesser mens rea is sufficient to establish an element of an offense, it is
also established if a person acts with a higher mens rea (i.e. negligence established if acted
recklessly/knowingly/purposely).

2.02(6). Purpose satisfied if purpose is conditional. When a particular purpose is an element of

an offense, the element is established although such purpose is conditional, unless the condition
negatives the harm or evil sought to be prevented by the law defining the offense. MERGE W/
PURPOSE element above
 A ∆ might intend to commit a particular act only upon a certain condition. Should he be
considered to have “intended” that act?
 Test: If the condition was met, would ∆ still be carrying out a crime?
 Start w/ statute and mens rea it requires.
 Under certain circumstances, conditional purpose = actual purpose
 ∆ goes into a house, intending to steal something only if no one is at home. Under MPC,
∆ will be found to have had the necessary intent for burglary (intent to break and enter
and intent to commit a felony) since the evils sought to be prevented by laws against
burglary (breaking and entering and subsequent commissions of felonies) would not be
negatived by the condition being met (if stole, would have been a felony).
 Carjacking: I’ll kill you if you don’t give me your car. Guilty of taking a car w/ the
purpose to cause death or serious bodily harm? Yes. The condition of handing over the
car to avoid an assault does not negative the harm sought to be prevented by the
carjacking law, which is that a car not be taken by the use of force or threat of force.
o SCOTUS: a ∆ may not negate an intent by requiring the victim to comply w/ a
condition he has no right to impose.
o Scalia: He has an intent to kill if resisted, not an intent to kill.
 Enter country w/ drugs for self-use. But you have conditional purpose that if someone
offers you a fortune for them, you’d sell.
o Since if the condition happened you’d sell it, that conditional purpose becomes
actual purpose, and you can be guilty of intending to sell drugs
 Under other circumstances, conditional purpose ≠ actual purpose. “Negatives.”
 ∆ breaks in for the purpose of having sex with the dwelling’s owner, but only on
condition that she consent, he won’t be held to have the necessary intent for burglary if
condition is met (she consents) since that would negative the harm sought to be prevented
by the law defining the offense (consented-to sex is not a felony)
  How figure out hard cases? Say this more like this type of case where we do treat
conditional intent as actual intent. Or it is more like this type of case where we don’t.

2.02(7) Requirement of knowledge is satisfied by knowledge of high probability. When

knowledge is required, it is established if a person is aware of a high probability of its existence,
unless he actually believes that it does not exist. MERGE W/ KNOWLEDGE element above
 Deals with problem of willful blindness.
 High probability = knowledge (is 33% “high”?)
 Other, non-MPC approaches:
o Deliberate ignorance = knowledge (extreme version of 2.02(7) adopted by Jewell)
o Deliberate ignorance = recklessness or negligence
o Deliberate ignorance = no culpable mental state
 Very subjective. Did the person actually know or actually willfully ignore?

Dressler: willful blindness = deliberate ignorance = knowledge. Occurs when actor chooses
not to know but
 is aware of a high probability of the existence of the fact in question, in order to be able
to deny knowledge, MERGE W/ KNOWLEDGE element above
o Takes deliberate action to avoid confirming the fact [deliberately not looking to
see if gun is loaded], or
o Purposely fails to investigate in order to avoid confirmation of the fact
 Designed for cases where there is evidence that ∆, knowing/strongly suspecting that he is
involve in shady dealings, takes steps to ensure he does not acquire full/exact knowledge
 Theory says if X went to great lengths to not know = knowledge.
 Controversial because:
o Potentially no act at all. Posner would not impose the doctrine on one who does
not take active steps to make sure he doesn’t acquire knowledge. Where landlord
made no inquiries about whether tenants would gamble in the house, even though
he knew they were gamblers.
 Failure to investigate is not the active avoidance w/ which the ostrich
doctrine is concerned—did not deliberately avoid acquiring knowledge
o Katz: Tough to say willful blindness = knowledge
o Jury might convict for being negligent or reckless in not knowing or confirming
suspicions, but both are less culpable states of mind than actual knowledge
 Advocates of approach: real proof hard to come by. Don’t want to reward person who
seeks to avoid criminal liability by purposeful ignorance.
 Doctrine appears in mail fraud, money laundering, environmental pollution
 NOTE: willful knowledge of a fact establishes knowledge of the fact but not necessarily
that the result was practically certain or highly likely. Need this for knowledge!!
[knowledge that the gun was loaded ≠ practical certainty that ∆ would kill B.
 Difference between common law and MPC:
o MPC: requires subjective awareness of a high probability of the fact, unless he
actually believe that it does not exist.
 Focus on what the ∆ did/did not believe
o CL: knowledge is established by deliberately or consciously avoiding knowledge
(may not require any awareness)—a belief that it does not exist would not
necessarily preclude an inference of knowledge.
 Focus on what ∆ did/did not do that precluded specific knowledge
 Jewell
Willful/strategic blindness = knowledge

∆ entered U.S. w/ marijuana hidden in a secret compartment. Said he didn’t know it was
there; evidence that he had some indication that secret compartment contained marijuana but
that he deliberately avoided getting positive knowledge to avoid responsibility.
 Justification: deliberate ignorance and positive knowledge are equally culpable
 MPC: positive knowledge not required when ∆ is aware of high probability of facts
 No bow to statutory violators who undertake calculated efforts to avoid sanctions
 Government must prove that if the ∆ was not actually aware, his ignorance was solely
and entirely a result of a conscious purpose to avoid learning the truth
 Kennedy Dissent: willful blindness is not knowledge.
2.02(8). A person who acts knowingly satisfies a requirement of willfulness, unless the offense
imposes more requirements.

Applying Mens Rea

 Think about what we want to punish. Should we regard the sailor in Faulkner same way
as another sailor who deliberately set fire to the ship? No.
 Must link mens rea req’t specifically to kind of harm each offense designed to prohibit.
 Courts, absent clear indications to the contrary, will interpret mens rea language (malice,
wanton, reckless, intentional) to require that the ∆ was aware his actions posed a
substantial risk of causing the prohibited harm (recklessness)

To determine presence of mens rea needed for conviction . . .

 Determine “material elements” (don’t relate to jurisdiction, venue, SOL) of an offense.
 Determine which type of mens rea is req’d w/ respect to each material element—purpose,
knowledge, recklessness, or negligence [insert more nuanced checklist with additional
factors above like willful blindness and conditional purpose] by using default rules of
2.02(3) & (4) if necessary
 Regina v. Cunningham, Court of Criminal Appeal, 1957, Q.B.
Malice ≠ wicked. Malice requires intention to do the kind of harm that was done or
recklessness as to whether harm should occur (has foreseen harm that might result and
took risk anyway). Ill will/absence thereof toward injured person irrelevant.

∆ stole gas meter to get coins. Gas leaked into V’s bedroom, unintentionally harming her.
 ∆ convicted for a felony for “maliciously” causing injury to V.
 Trial Ct translated malice into “wicked.”
o Meant ∆ could be convicted for harm to V due to his immoral stealing
 Appellate Ct: modern definition of “malice” ≠ wicked
o Either prove intent or recklessness
 Arguably did take a substantial + unjustifiable risk.
 If he was aware of it and consciously disregarded it, then it is correct to
say he recklessly caused the social harm (acted w/ malice)
 If he was not aware but should have been, then he acted criminally
negligently, falling outside the definition of “malice”

Don’t need to have ill will toward victim to be found having requisite mens rea for conviction.

Historically, “wicked” view was predominant. Bad state of mind + bad act = crime. No longer.
 We now split the mens rea as related to theft from the mens rea related to the poisioning.

Regina v. Faulkner, 1877

Offense = intentionality + willfulness (proven by knowledge + recklessness)
∆, a sailor, in trying to steal some rum from the cargo area of his ship, lit a match in order to
see better in the dark. Rum caught fire, completely destroying the ship. Conviction quashed.
 To constitute an offense, act must be intentional and willful, though the intention and
will could be proved by the fact that the accused knew that the injury would be the
probable result of his unlawful act, and yet did it recklessly anyway.

Mistake of Fact

 ∆ unaware of, or mistaken about, a fact related to an element of the offense  might not
be criminally liable (e.g., didn’t know shooting a person)
 Jurisdictional mistakes never exculpate—didn’t know murder falls w/in PA’s jurisdiction

COMMON LAW
 Moral Wrong Doctrine
o No exculpation for mistake of fact where, if the facts had been as ∆ believed them
to be, his conduct would still be immoral (not morally wrong = drug possession)
o ∆ will generally be punished for a greater crime than ∆ committed under the facts
as he believed them to be—punished for the crime of which he committed A/R
o subject to punishment for a greater crime by satisfying A/R of greater crime &
M/R of lesser crime
 Regina v. Prince
When an act is morally wrong in itself, liable. Mistake of fact does not excuse (& will
punish for severe crime you committed, not lesser crime you thought you committed).

Facts: ∆ convicted for “taking an unmarried girl, under 16, out of father’s possession against
his will.” Girl only 14 but ∆ reasonably and honestly believed she 18.
 Doctrine not triggered unless ∆’s conduct would be immoral had the situation been as
he supposed. If ∆ reasonably believed girl homeless (he was mistaken about attendant
circumstance that she had a family  would be acquitted).
 Rationale: ∆ who knowingly performs a morally wrong act assumes the risk that the
attendant circumstances are not as they reasonably appear to be
Dissent: If facts were as ∆ thought, this wouldn’t be illegal  that’s a defense

 Lesser Crime Principle (Dissent in Prince).

o Mistake of fact is a defense only if, under the facts as ∆ believes them to be, her
conduct does not constitute a crime.
o ∆ will generally be punished for a greater crime than ∆ committed under the facts
as he believed them to be—punished for the crime of which he committed A/R
o Mistake of fact relating to the gravity of the offense will not shield ∆ from full
consequences of wrong actually committed.
o If conduct causes social harm prohibited by Serious Offense X, guilty of X even if
would be guilty of Less Serious Crime Y if situation were as he believed
o subject to punishment for a greater crime by satisfying A/R of greater crime &
M/R of lesser crime

Moral-wrong + lesser-crime principles still important in offenses involving minors, sex + drugs.
 ∆s convicted of possessing drugs w/in a school zone w/out prosecution having to prove
he knew he was w/in school zone (did have to prove he knew he had drugs)  allowed
conviction for more serious school-zone offense

MPC 2.04: Mistake

 Figure out required mens rea for a crime under MPC 2.02
 2.04(1): If a mistake of fact negates mens rea of a material element of offense,
exculpates, subject to 2.04(2)
o Like 2.02: you either have mens rea req’d by definition of offense or you don’t.
o Purpose/knowledge negated by any honest mistake—reasonable or unreasonable
(if unreasonably but honestly believed it was her own house)
o Recklessness only negated if mistake honest + reasonable or honest + merely
negligent (unreasonable but unaware) (not negated if unreasonably thought for a
moment that it wasn’t her house but consciously disregarded that risk)
o Negligence only negated if mistake was reasonable
o If strict liability offense, no mistake would negate it, whether reasonable or not
 2.04(1)(b): The law provides that the state of mind established by such ignorance or
mistake constitutes a defense.
 2.04(2): Exception: Although mistake would otherwise afford a defense to the offense
charged, the defense is not available if the ∆ would be guilty of another crime had the
situation been as he supposed. (have to satisfy 2.04(1) also)
 o UNLIKE common law (which says ∆ is guilty of the higher offense), Code
allows punishment to be reduced to that of the offense for which he would be
guilty if the situation been as he supposed (lesser crime principle)—punished for
the crime of which the ∆ satisfies the requisite mens rea (subject to punishment
for a lesser crime by satisfying A/R of greater crime & M/R of lesser crime)
o Floyd reasonably believed he had heroin but he had cocaine—this is a defense to
crime of knowing possession of cocaine. But he’d be on the hook for knowing
possession of heroin.

People v. Olsen
Legislative intent not served by recognizing a defense of reasonable mistake of age.

Facts: ∆ appeals from statutory rape charge for girl under 14; thought she was 16.
 Legslatr didn’t intend to create a mistake of age defense (statutory rape a SL offense).
 Legislature created another section under which those who made a reasonable mistake
of age were eligible for probation—proves that no mens rea req’t w/ respect to age
MPC: allows defense for reasonable mistake of age, except provides for SL when kid under 10.
213.6: Whenever criminality of conduct depends on a child being less than 10, it is no defense
that the actor did not know the child’s age, or reasonably believed the child to be older than 10.
a. The Acoustic Separation Approach, Professor Dan-Cohen.
o Age limitation addressed to the court, a bright line to constrain judicial discretion
 ∆ guaranteed to have negligent/reckless mens rea of sleeping w/ an
immature child if we make the statute unduly narrow.
o Statute’s conduct rule says to the public: don’t take young girls from their parents.
 If we set the age at 10, even if ∆ thought the kid was 11, he ∆ can’t claim
that the kid he slept with (or did something else criminal with a kid that
we think is too immature to consent to) looked mature enough because she
looked 11. Would be absurd/reckless if he did that.
 Kinda does require mens rea—mens rea of sleeping w/ an immature child.
o Deals w/ admin. difficulty of having to determine if victim appeared mature or not

Summary of Approach:
1. To which element(s) of the offense does each mistake pertain?
2. What is the requisite mens rea for that element?
3. Is the mistake relevant?
a. Does it deal w/ a jurisdictional element (mistake not relevant)?
b. Does it regard a strict liability element (mistake not relevant)?
4. If the mistake is relevant, does it negate the requisite mens rea?
5. If the mistake negates the requisite mens rea for the offense charged, would ∆ still be
guilty of another crime had the situation been as he supposed?
6. If yes, ∆ will only be punished for the other crime.
7. Moral Wrong Doctrine: If the facts were as ∆ believed them to be, would his conduct
constitute a moral wrong?
8. Lesser Crime Doctrine: If the facts were as ∆ believed them to be, would his conduct
constitute another crime?

Strict Liability
Strict Liability Offense: Mistake of fact never negates criminal responsibility (no require
knowledge of facts that make a principal’s conduct illegal)

 No mens rea required

 Prohibited act/omission is enough to convict
 Katz: SL as to any material element of a crime makes it a SL crime.
 Statutory rape most serious SL offense regarding attendant circumstance of child’s age
 Bigamy (∆ guilty even if he reasonably thought a purported divorce decree was valid or
that prior spouse dead—some cts go other way under mistake of collateral law defense)

 Don’t impose SL where:

o malum in se offenses: inherently immoral: rape, murder, arson; CL crimes (theft)
o nature of activity (not sufficiently dangerous) Staples

 Impose SL where:
o legislative policy would be undermined by requiring a mens rea
o regulatory/public welfare/health + safety offenses, where public at risk
 sales of liquor/food/drugs, mislabeled items, pollution, traffic violations
o single violation can injure a great # of people
o a “violation” that imposes fines or forfeiture, not imprisonment
o conviction does no grave damage to offender’s reputation
o compliance relatively easy (standards reasonable: “don’t sell alcohol to minors”)

 MPC disfavors strict liability except in cases of crimes involving children

o MPC 213.6 (1): whenever criminality depends on a child being < 10, it is no
defense that the actor did not know or reasonably believed the child > 10
 When criminality depends on a child’s being below a critical age other
than 10, it is a defense for the actor that he reasonably believed child to be
above the critical age
o Rationale: not really SL because the age is set so low that it would be reckless to
commit the offense with a child anywhere near 10 so there is a level of mens rea

U.S. v. Balint
SL justified when public welfare served by eliminating mens rea requirement.

Facts: ∆s did not know they were selling prohibited drugs w/out filling out required form.
 SCOTUS: statute did not require knowledge that selling these drugs required form
 Purpose of act: to require every person dealing drugs to find out whether prohibited
o Danger of exposing innocent purchasers to drug > injustice to seller
 U.S. v. Dotterweich
Mistake of fact that drugs mislabeled does not excuse for SL public welfare offenses.

Facts: ∆ prosecuted for mistakenly shipping mislabeled drugs in violation of Food, Drug Act.
Holding: statute requires no mens rea re: whether ∆s knew/should have known of mislabeling.
 Statutory policy to protect public by keeping impure drugs out of the market
 By dealing w/ a dangerous device, ∆ has duty to determine if conduct is prohibited
 Public helpless

Morisette v. U.S.
SL can’t apply here b/c it wasn’t a public welfare offense. When offenses are
incorporated from common law malum in se offenses, go w/ historic view of requiring
mens rea absent contrary legislative purpose.

Facts: junk dealer convicted under statute criminalizing stealing government property (spent
bomb casings). He thought it was abandoned (mistake of fact)
 Statute did not specify a mens rea: should we assume this a SL offense?
 At CL, crime of conversion required knowledge that property had not been abandoned
 Congress omitted express mens rea requirement because they knew that all
jurisdictions would hold that mens rea of intent was inherent in this class of offense
o They were just codifying a common law crime

Staples v. U.S.
To dispense w/ mens rea, offense must be sufficiently dangerous and put offender on
notice of regulation.

Facts: ∆ charged w/ violating statute making it an offense to posses an unregistered firearm

(up to 10 yrs in prison). Rifle met Act’s definition of a automatic firearm——but only
because it had been altered. ∆ he didn’t know gun could fire automatically (mistake of fact)
 Statute silent on mens rea required for a violation
 No indication that Congress intended to eliminate mens rea reqt of knowledge
 Prosecution: a public welfare/regulatory offense, guns are dangerous, owners should
be on notice that they should determine whether their guns are w/in scope of the Act
 In U.S., buying a gun like buying a car—would not alert a person to regulation
 Congress wouldn’t impose 10-yr prison term for possessing a conventional weapon
 Majority would allow SL for possession of unregistered grenades where ∆ knew that
items in his possession were dangerous grenades but didn’t know they unregistered

Involuntary Act Defense to a SL Crime

 State v. Baker: ∆ convicted for speeding, a SL offense.
o ∆: Cruise control got stuck. No voluntary act!
o Ct: he himself activated cruise control, voluntarily delegated partial control of car.
o Might allow defense if: brakes failed, child grabbed his arm, making him swerve
 U.S. v. Feola
Status of victim an immaterial element, requiring no mens rea w/ respect to it.

Facts: ∆ tried to sell sugar as heroin. Purchasers were undercover federal agents. ∆ assaulted
federal agents (didn’t know they were federal agents). Charged with assaulting federal officer
 Katz: assault statute generally require a mens rea req’t of recklessness. None here.
o If Feola is to be held liable, this must be a S.L. crime: w/ no mens rea
requirement regarding status of assault victims (federal agents)
 Counterargument: MPC mistake provisions (2.04)(1) & (2): reject SL: ∆s needed to be
aware they were dealing w/ federal officers
 Counterargument: This isn’t a public welfare w/ reduced penalties. It’s an assault!
 Holding: MPC 1.13(9) & (10): status of victims as fed. agents not a material element
o MPC 2.02 mens rea default rule only applies to material elements of a crime

Dissent: Legislature must have wanted a mens rea requirement because punishment is so high
 Here, higher punishment for assaulting federal agents vs a man off the street.
o Means victims’ status as government officials was a material element
o What is immaterial is that the agents were federal (vs. state agents).

Mistake of Law

Lack of knowledge or recklessness/negligence about whether conduct is an offense is no defense

 Aware of law but misinterpret meaning is no defense
 In SL offenses, there is no mens rea to negate so mistake of law no help.

MPC 2.02 (3) & (4): only use these default mens rea rules when they are consistent w/ the
mistake of law principle, including all its exceptions.

MPC 2.02 (9): Ignorance of law is no excuse (knowledge not req’d and reckless/negligence
won’t save you), unless statute so provides

MPC 2.04 (1): Relates to collateral-law mistakes

Ignorance or mistake of fact or law makes you not liable if:
a. The ignorance or mistake negatives the mens rea required to establish a material element
of the offense
a. See above (mistake of fact)
b. The law provides that the state of mind established by such ignorance or mistake
constitutes a defense.

2.04(2): Ignorance/mistake defense not available if ∆ would be guilty of another offense if the
situation had been as he supposed  but then he’d be convicted of the offense of which he’d be
guilty had the situation been as he supposed.

2.04 (3): ignorance of law excused when:

 the statute is not known to ∆ AND has not been published OR otherwise reasonably
made available before alleged conduct; or
o judicially enlarged after act: Bouie
  ∆ acts in reasonable reliance upon an official statement of the law, later determined to be
invalid or erroneous, contained in 1) a statute, 2) a judicial decision, 3) an administrative
order/grant of permission, or 4) an official interpretation of the public officer or body
charged w/ responsibility for interpretation or enforcement of the law (Hopkins)
o Like CL, MPC doesn’t recognize excuse for reliance on erroneous advice of a
private attorney
o “later determined to be invalid or erroneous” = an official ruling that the
statement of the law is invalid or erroneous. A judicial interpretation of a valid
portion of the statement means something different than what the ∆ thought is not
finding the statement to be invalid or erroneous.

Exceptions to Ignorance of Law Principle

Mistake of law excuses when . . .

Where knowledge of prohibited conduct or intention to violate is an express element of the crime
 “A person who knowingly violates this section is guilty of a misdemeanor”

Collateral Law Exception—ignorance of a collateral criminal law does not excuse but ignorance
of a collateral civil law does (generally characterizing material attendant circs)—even if
ignorance is unreasonable
 Regina v. David Smith. ∆ ignorance of law of fixtures, a collateral civil law, exonerates
o ∆ ripped out floorboards he’d put in. Said, I’m not liable because it was my stuff.
o ∆ ignorant of collateral property law (certain improvements you make become
incorporated into the apartment)—∆ mistaken that floorboards were his to take
 State v. Varzegi. ∆ stole + sold tenant’s computers. Acquitted. Better result to convict—
he was ignorant of a valid criminal law.

Statutory Exception. Law makes clear that mistake (no knowledge) of law is a defense. Could
look at legislative intent: did legislature want to reduce the burden on people to inform
themselves of what the law required
 U.S. v. Cheek. Convicted of “willfully failing to file taxes.” ∆: I didn’t know wages were
income on which he had to pay taxes
o Congress, acknowledging complexity of tax laws, made specific intent to violate
the law an element of certain federal criminal tax offenses : strongly indicates that
it wants to care out an exception to default mistake of law rule
 How know that law allows such a defense? Maybe it includes “willfulness” or
“knowledge” language: Cts have said that W/K requires 1) awareness of specific statute,
2) a general awareness that acts committed unlawful, or 3) mere awareness of only the
facts/acts committed (∆ knew he was distributing something but did not know a
controlled substance). If the last, can least easily use defense of mistake of law.

Reliance Exception. When an individual reasonably relies on an official pronouncement of the

law by a legal authority to proceed with his conduct believing it to be legal, aka E by E.
 An excuse: ∆ is not guilty although all essential elements, including mens rea, satisfied
 Entrapment by Estoppel: SCOTUS: a violation of due process to convict for conduct that
government representatives, in their official capacity, had earlier said was lawful.
 Entrapment by Omission: sentencing judge told ∆ he could no longer possess a firearm
for one-year probation. Not incorrect but misleading cuz he barred from possessing after
that time also. Conviction of unlawful possession reversed
  Unreasonable reliance: Albertini. ∆ convicted for trespass for demonstrating on naval
base. 9th Cir. aquitted: conduct protected under 1st Amend. Before SCOTUS decided
whether to review case, ∆ engaged in a second protest.
o One view: have right to rely on latest controlling (here, 9th Cir) opinion.
o 2nd view: no due process right to rely on 9th Circ. decision ruling that his conduct
was lawful because there were conflicting decisions from courts of appeals + a
SCOTUS decision contra to ∆’s view reasonably foreseeable.
 Marrero. Exception to exception.
o Rule: One’s own misreading of law does not excuse, even if a reasonable law-
trained person, would have similarly misinterpreted the law.
o Facts. Arrested for unlicensed possession of loaded pistol. ∆ believed he fell w/in
peace officer exception of handgun statute. Unclear statute only applied to state,
not federal officers like him.
o Could view this as a collateral civil law (though likely to be read as collateral
criminal law)—could argue he made a mistake as to reading a definition in a
criminal procedure statute, not a criminal prohibition.

Lambert Case. Lack of fair notice of a criminal registration statute is a due process violation.
Can’t impose an affirmative obligation on people to do something w/out giving them notice.
 An excuse: ∆ is not guilty although all essential elements, including mens rea, satisfied
 Facts: ∆ violated statute that req’d those convicted of felony offenses to register. No
mens rea req’t in statute. ∆ had no knowledge of statute or duty to register.
 Ct. reversed conviction on “lack of fair notice” constitutional DP grounds: actual
knowledge of a duty to register or proof of probability of such knowledge required
 Ct. seemed to rest on “act” vs. “omission” aspect—failure to register. Statutory purpose:
to make conveniently available to police names/addresses of felons
 Counterargument: in Cheeks could say, everyone is on notice to pay taxes
o All states now have sex offender registration—that should move ∆ to inquire
about need to register even if move to a new state
 Problem: Lambert would exonerate Marrero + most people.
 Lambert is very radical. Seems to invalidate ignorance of law is no mistake principle.
 SCOTUS and other courts ignored this opinion. Was never repealed but as if it had been.
o Generally, official publication of a validly promulgated statute is fair notice
 Remains a tool you can use when your case has facts nearly identical to facts of this
case—where it seems so grossly unjust to assume that a citizen is aware of a penal law’s
existence—would argue DP violation: 4 factors, assuming ∆ actually unaware of law:
o Where an omission (failure to register, failure to move)
o Where looks like a status offense (presence in L.A., status as a sex offender)
o Where a malum prohibitum offense
o ∆ had no reason to know of the law’s existence: where unpublished or where
nothing about prohibited conduct would alert ∆ to investigate whether there is
relevant law
 reasonable period of time between publication + effective date?
 What wouldn’t work: pharmacist not keeping records of sales of
dangerous drugs. Act of selling dangerous drugs should alert pharmacist to
possibility of legislation relating to their sale
 Sex offender not registering (proliferation of sex offender registries)
U.S. v. Barker
A. Start w/ the statute. Ambiguous. 2 meanings: 1. Statute requires intent to conspire to
violate K’s rights  no had this intent, get off. 2. Statute requires only that they had
intent to conspire or that they had intent to go in disguise on the premises of another and
that led to constitutional violation which led to crime  they had latter, so on hook.
B. Move on to canon of construction. Can say mistake of law is no excuse.
C. But there are exceptions: There is a collateral law here.
a. Search & seizure law is a criminal law so it doesn’t help you. On the other hand it
is a criminal procedural law so maybe it does.
b. Statutory exception. Under natural reading of the statute, would be weird to say
that someone intended to conspire to violate constitutional rights when they didn’t
think they were violating constitutional rights.
i. 2.04 makes awareness that you are violating a law a req’t of the crime.
ii. 2.04(3)(b) might help. Got permission from an appropriate authority.

D.P. clause would also be violated if the type of provision found in 2.04(3)(b) was struck from a
criminal statute—saying even if you heard from a judge this was ok—that doesn’t excuse you.
That would be entrapment by estoppel.

Winning arg in Barker for prosecution: you did not rely on an official statement of the law. He
was just a dude. Kind of stripped the utility of this mens rea exception.

To do a reliance exception analysis:

Can use entrapment by estoppel and MPC to analyze the case. In fact, use both!

Homicide

 Homicide = “the killing of a human being by another human being . . .”

 For intentional killings, prosecutor must prove ∆’s intent to kill another, not simply that a
reasonable person would have known that death would result
o Prove by showing that ordinary people intend the foreseeable consequences of
their acts. Show: ∆ ordinary  intend foreseeable  this result was foreseeable
 intent to kill
o Prove by showing use of a deadly weapon

PA Statute’s purpose: to divide common law murder into statutory degrees:

o Criminal Homicide: guilty of criminal homicide if I/K/R/N causes death of another
o 1st Degree: criminal homicide constitutes 1st degree murder when intentional
 requirement: willful (specific intent), deliberate (takes time) and
premeditated
 greatest punishment (death or life)
o 2nd Degree Murder: death of another results while a principal or an accomplice is
committing a felony (felony-murder)
 (robbing + someone dies during course of robbery)
o 3rd Degree Murder: All other kinds of murder (extreme recklessness)
o Problems: Premeditation is Demarker; motive does not provide a defense or mitigate
o Premeditation doesn’t necessarily indicate a higher level of culpability or
that highest punishment is deserved. Forrest (mercy) vs. Anderson (callous).
o How much time is required for murder to be premeditated? A second?
 Commonwealth v. Carroll (PA)
Carroll: intention = premeditation. Time between premeditation + killing immaterial if
killing intentional, willful, deliberate, & premeditated: 1st Degree. Some premeditation
req’d but “no time is too short”

Facts: ∆ appeals 1st-Degree murder conviction, ∆ says it wasn’t premeditated or intentional

o Shot wife in bed in head after intense argument 5 mins after her last remark
o ∆ deliberately took the gun down from windowsill + deliberately shot his wife

Later Ct. that followed: premeditation + deliberation may be formed while killer is “pressing the
trigger that fired the fatal shot. Young.

Clarification to Carroll: requirement of premeditation + deliberation met when there is intention

to bring about death (no need elaborate design to kill). O’Searo.

State v. Guthrie (opposite of Carroll)

Intention ≠ premeditation. Can’t say that intent was formed at the instant of killing
him—that eliminates distinction between two degrees of murder.

Premeditation requires appreciable time lapse (to deliberate, reflect on decision to kill)
between forming intent to kill + actual killing.

Spontaneous + nonreflective killings = 2nd Degree murder.

Facts: ∆ found guilty of 1st Degree murder (any willful, deliberate and premeditated murder).
o Victim poking fun at ∆ (flicked him in nose); ∆ stabbed and killed him.
o Accused must kill purposely after contemplating intent to kill.
o Ct. did find evidence adequate to permit jury to find premeditation!
o Katz: provocation defense could help (sensitive about nose, a “under the circs” fact)

Carroll & Guthrie exemplify split in American jurisdictions on meaning of premeditation.

o Carroll equates “premeditation” with any intent to kill
o for intentional killings, eliminates distinction between 1st & 2nd Degree murder.
o Guthrie distinguishes between intent to kill & intent + premeditation.
o Premeditation grades differently—more serious punishment.
o But what evidence sufficient to establish this more substantial premeditation?

Proof of Premeditation: 1) ∆’s “planning” activities pre-killing, 2) reason to kill (motive), 3)

killing was particular/exacting as if killed according to a design. Anderson (Cal).
o Coolness/calculation
o Compare: ∆ took gun to hospital to visit terminally ill dad, sobbing w/ emotion, killed
him w/ a single shot to the head. Conviction upheld. Forrest.

Proof of No Premeditation: no motive; random knife wounds suggest explosion of violence.

Anderson (killed child by stabbing her throughout house)
MPC rejects premeditation as basis for identifying murders deserving of greatest punishment.
o Very premeditated killing (mercy killings) might be less culpable than unthinking killings
(Anderson)
 Args against: a premeditated killer can be dettered so there should be a distinction (can
punish him more harshly to deter)
 Distinguishes between reckless + intentional (more serious) killings
o Similar problem of poor correlation w/ blameworthiness: can think of cases where
recklessness is more blameworthy than intentional (mercy) killings.

210.1. Criminal Homicide

o 210.2. Murder. Intentional killings are murder (no premeditation requirement): 1st Degree
o committed purposely [conscious object] or knowingly; or
o committed recklessly under circumstances manifesting extreme indifference to
human life (shooting a gun into a full room, speeding in inclement weather +
while intoxicated, playing Russian Roulette, no feed baby for 2 weeks)—
recklessly = consciously disregards (aware of) a substantial + unjustifiable risk to
human life. Disregard involves gross deviation from standard of conduct a
reasonable person would observe in the actor’s situation (room for subjectivity)
 Such recklessness presumed if ∆ is an actor/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.
o 210.3. Manslaughter when (2nd Degree felony):
 committed recklessly (lesser caliber of murder recklessness—mere
indifference or disregard for life); or
 committed under influence of mental/emotional disturbance for which
there is reasonable explanation/excuse (MPC provocation approach).
Reasonableness determined from viewpoint of a person in actor’s situation
under the circs as he believes them to be (includes ∆’s personal handicaps
but not idiosyncratic moral values—homophobia)
o 210.4. Negligent Homicide: 3rd Degree Felony
 Committed negligently (should have been aware of substantial +
unjustified risk but wasn’t; lack of awareness constitutes a gross deviation
from that of a reasonable person in his situation)—thought gun unloaded
 Departure from CL: liability for manslaughter can’t be founded on
criminal negligence

Tip: Lookout for actors w/ special skills/expertise. Expertise may exculpate because they might
not be posing a risk when a less skilled driver would be. Or inculpate because ∆ should have
greater awareness of the risk. Or may have less awareness of his imposition of risk because of his
exaggerated perception of his/her own expertise.

Provocation Defense: not a defense—just mitigates down grade from murder to manslaughter
o Rationale: when provoked, a reasonable person might unreasonably + intentionally kill
o Elements: 1) ∆ acted in heat of passion, 2) passion must have been result of adequate
provocation, 3) actor must not have had a reasonable opportunity to cool off, 4) causal
link btwn provocation, passion + homicide (not available if would’ve killed w/out
provocation)
 o passion = any intense emotion, fear, fright, terror, jealousy, or desperation
o Traditionally adequate provocation: adultery, unwanted advances, but not words
o Today, some jurisdictions allow provocation defense for verbal provocation
o Common Law: provocation so gross to render a reasonable person to act rashly
o Camplin Majority: reasonable person of similar age or sex
o Camplin Dissent: use reasonable person standard but take into account
surrounding circs and individual attributes when assessing degree of provocation
o Causal connection: can’t argue provocation if you were going to kill your biz rival
anyway but then saw her having sex w/ your husband.

Partial excuse or partial justification? + Impact on Nonprovokers

Excuse: don’t approve but forgive because of reduced volitional capacity (less blameworthy).
 Might allow killing of an innocent bystander or nonprovoker
Justification: we approve of what he did by saying that victim deserved to be killed
 Would not allow defense if killed a bystander or nonprovoker

Girouard v. State (predominant common-law position)

Only a few specific circs = legally adequate provocation that mitigates murder to
manslaughter: assault/battery upon ∆, mutual combat, ∆’s illegal arrest, injury/serious
abuse of ∆’s closer relative, sudden discovery of adultery (categorical approach).

Words alone are not adequate provocation—unless accompanied by conduct indicating

a present intention and ability to cause ∆ bodily harm.

Facts: Wife verbally insults/attacks ∆. He stabs/kills her.

 Adequate provocation = calculated to inflame passion of a reasonable man and make
him act from passion, not reason.
o Wife was physically incapable of causing ∆ bodily harm.

Some jurisdictions that follow prevailing Girouard view (words alone don’t count as
provocation) soften the view, holding:
 Words might not suffice if they are insulting words
 Words can suffice if are informational + disclose facts that could be sufficient if the ∆
had witnessed them directly (I tortured + killed your mother)

Cooling-off time: traditional CL approach no permit provocation defense after passage of time.
 Maher v. People, 1862 (modern, minority view)
Provoking circumstances do not need to conform to pre-established categories to count
as adequate provocation. Jury should decide whether facts as a whole demonstrate
adequate provocation.

Facts: ∆ followed his wife + paramour who went into woods together and came out ½ hour
later. ∆’s friend told him that paramour + ∆’s wife had had sex in the woods the day before.
 Here, circumstances made ∆ believe adultery  sufficient provocation
 Dissent: provocation must occur in presence of the person who committed homicide

MPC (open-ended like Maher)

 210.3. Manslaughter when (2nd Degree felony):
o committed recklessly (lesser caliber of murder recklessness); or
o committed under influence of mental/emotional disturbance for which there is
reasonable explanation/excuse. Reasonableness determined from viewpoint of
person in ∆’s situation under circs as he believes them to be.
 “under circs” would apply even if ∆ mistaken about whether
provoker actually did the provocative acts

o Broader than common law provocation defense

o not reasonable person standard: focuses on degree of passion sufficient to
reduce actor’s ability to control his actions
o Does not exclude words but also doesn’t guarantee that words will count
o No categorical rules: infidelity—could count, could not
o external provocative event not reqd (∆ killed after going through tough time
brought on by child custody issues/inability to keep house, big fear of bro)
o no need provocative act to be perpetrated on ∆ by decedent: enough that ∆
believed that decedent responsible for the affront
o no rigid cooling off rule
o killing of a nonprovoker does not preclude the defense
 Director of Public Prosecutions v. Camplin
Provocation should be assessed under a reasonable person standard, but individualized
w/ regard to a person’s age + sex.

Facts: Khan had sex w/ 15-yr old Camplin, then taunted him. C killed K, citing provocation.

If someone were mentally disabled, the majority and dissent would agree—no lower standard.

Dissent: if you say that people of certain age/sex are more mentally unstable, you are
individualizing too much and diluting the reasonable person standard.
 We always take into account the circs in determining the degree of provocation (to
determine how insulting that provocation would have been to a ∆ in those circs—those
type of hunchback-related to a hunchback, or boy-related to a boy)
Majority: we don’t take into account his characteristics to determine level of self-control we
expect of him (adjusting standard down) but rather to determine gravity of provocation.
 So we just ask: would a reasonable person of this age/sex be sufficiently affected by
this level of provocation to act rashly?
Dissent: No provocation here because insult wasn’t related to age/sex.

To help Chloe: ask judge to consider that she’s a woman and explain that you’re not asking for a
lower standard for her behavior (no adjust reasonable person standard down to the amount of
self-control we expect) but that you want her sex to be considered in looking at the way those
words might have provoked someone in her circumstances.

Camplin Dissent: we would allow this “under the circs” if allegedly provoking words themselves
had some content related to her sex/age. Only then can we take her sex/age into account.

Felony-Murder Rule

 Guilty of murder if death results from ∆’s commission/attempted commission of a felony

o No matter if felon killed P/K/R/N: in a way authorizes SL for a death that results
 Accomplices: if an accomplice to felony, guilty of murder, despite own mens rea
 Archetypal cases: a bank robbery + gun goes off accidentally; Stamp
 Generally does not apply if an adversary to the crime (victim, bystander, police officer),
rather than a felon, commits the homicidal act.
o Exception: ∆ responsible under F-M for actions of its agent (accomplices)
 Guilty for foreseeable deaths resulting from felony (victim of robbery shoots accomplice
or bystander, but maybe not if shoots bystander after felon already took the money + ran)
o No apply if victim shot ∆ himself (cuz not cause death of another)—accomplice
would get off too cuz no gross negligence could be attributed to ∆
 Difficult: using mens rea of lesser offense to substitute for mens rea of greater offense
(Olsen dissent and MPC generally don’t like that)
 Rationales:
o Reason for what you are doing is so bad (negative justification), that we don’t
look at the quantity of risk you create of death, however minimal = negative/bad
justification renders you presumptively reckless + more culpable
o Deterrence from committing underlying felony
o Might make people really careful when they commit felonies
 o Criticism of Deterrence grounds: iticism: hard to deter an unintended act

o MPC 210.2. Murder –preserves F-M rule. Criminal homicide is murder when:
o committed recklessly under circs manifesting extreme indifference to human life.
 Such recklessness presumed if ∆ is an actor/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.
 Don’t need to establish felony as inherently dangerous + nonmergeable
 This is a nonconclusive presumption  ∆ can rebut recklessness

People v. Stamp (majority rule, archetypal case of appropriate use of F-M rule)
F-M Rule imposes strict liability for killings that result from the commission of a felony,
regardless of whether felons/accomplices knew/should have know that their conduct was
endangering life + you take your victim as you find him.

Facts: ∆ robbed a store at gunpoint and fled. Shortly after, victim cashier had a heart attack
(fright of robbery was too much of a shock to him). ∆ convicted of murder under F-M Rule.
 Victim was egg-shell (history of heart disease)

Punishment: even for most serious felonies, authorized sanctions much lower than those for
murder. F-M rule produces potentially dramatic increase in punishment.

Causation: F-M Rule eliminates mens rea req’t of murder but not AR or causation req’ts. Must
show that death caused by ∆’s conduct: 1) but-for the felony, death would not have occurred. 2)
result must have been natural/probable consequence of ∆’s action (forseeable)—must be
attributable to the ∆’s action, not to mere coincidence or intervening act of another.
 King v. Commonwealth. ∆ and copilot transporting marijuana and crashed. ∆’s F-M
conviction reversed: drug crime was not proximate cause: crash not forseeable result of
the felony because it was not made more likely by fact that they were carrying drugs.
o Katz: a collateral crime that is irrelevant
o Maybe prox. cause if crash caused by flying at low altitude to avoid detection.

Limitations to F-M Rule

1. Underlying felony must be inherently dangerous to life (Phillips)
 Can look at it in the abstract or in the concrete view
 Limit to inherently dangerous activities because scope of F-M Rule too broad otherwise.
 We want deterrence w/ regard to serious felonies, allows for marginal deterrence
(deter/encourage carefulness at risk of murder conviction)
 People v. Phillips
F-M Rule can only be triggered by felonies that are inherently dangerous to
life/sufficiently serious. (In the abstract, grand theft (theft by deception) is not)

Facts: ∆ told parents that he could cure kid’s w/ eye cancer w/out surgery for $700. Kid died.
Rationale: concern of expanding F-M Rule too far if apply to not just felonies dangerous to
life but to any felony during which a ∆ acts in a way so as to endanger life.
Prosecution: grand theft medical fraud more dangerous to human life than grand theft generally.

CA Test for Inherent Dangerousness of the Underlying Felony:

 Is the Underlying Felony Inherently Dangerous “In the Abstract?”
o By its nature, creates high probability that death will result: forceful entry into a
building (burglary)
o Henderson:“false imprisonment” effected by violence, menace, fraud or deceit—
not dangerous in the abstract because it can be committed nonviolently (by
fraud/deceit)
o CA courts found “abstract” requirement satisfied for: arson of a motor vehicle,
shooting at an inhabited dwelling, poisoning w/ intent to injure, manufacturing
meth.
o ∆, after being stopped for a traffic violation, fled police + hit another car, killing
driver. Convicted of F-M based on predicate felony “attempting to elude a
pursuing cop while committing 3+ traffic violations.”
 Inherently dangerous?
 Yes if fleeing from a cop, breaking traffic laws as you go, is
inherently dangerous in all circumstances, i.e. in the abstract
 No, if traffic violations were for things like failure to signal
 Actual facts + circumstances test: was underlying felony inherently dangerous as
committed in this instance, given the particular facts + circumstances of this case.
o Easier test: because death occurred, easy to conclude felony was dangerous
 Some overlap w/ extreme recklessness of normal murder charge but not always (possible
that a felon will be unaware of the dangerousness of her actions)

2. Merger doctrine/Independence Requirement

 F-M Rule can only be applied to a felony w/ a purpose different from the purpose for
committing the conduct that caused death, not to felonies that are integral to the homicide
o ∆’s purpose is to steal + death results, apply F-M
o ∆’s purpose is to assault w/ a deadly weapon (purpose is to kill/harm), no F-M
(cuz that’s the same purpose for committing the act that causes the death)
o Burglary more difficult since sometimes purpose is $ + sometimes purpose is
killing/harm.
 Katz: bizarre doctrine because it confers a benefit on worst offenders (assault w/ a deadly
weapon) (you’d have to establish the required mens rea for the homicide).
o Weird cuz F-M Rule is about deterring very dangerous behavior.
o Goldilocks effect: underlying felony must be inherently dangerous but not too
 Rationale: ∆ might be charged w/ murder anyway, so don’t need F-M rule.
o Ireland: husband shoots wife. Even w/out F-M rule, husband would still be liable
for murder. But possibility of provocation-manslaughter exists.
 o Maybe possibility of reducing offense to provocation-manslaughter explains
merger doctrine. If we allow F-M rule to be used here, it would disrupt the
grading scheme of the homicide statute, turning all such cases into murder.
 Would make provocation defense unnecessary.
 Would collapse all homicides into felony-murder.

People v. Smith
F-M instruction can’t be given when the felony is an integral part of the homicide—the
homicide was a result of the child abuse (merger doctrine)

Facts: ∆ hit child +knocked her down. Child hit head, died. Underlying felony = child abuse.
 Ireland, Wilson, Burton bar application of F-M Rule “where the purpose of the
conduct (child abuse) was the very assault which resulted in death.”
 Shockley different: death followed from malnutrition.
 Katz: This could have been dealt w/ as a regular homicide (extreme recklessness)—
but would have to prove higher-level recklessness mens rea required for murder.

Ireland (emblematic case of where we want merger exception to apply): Drawing a gun
integral part of homicide. Merged into the latter.
 ∆ drew gun and killed his wife. Underlying felony: assault w/ a deadly weapon.
 Purpose of the conduct was the very assault which resulted in death
 Cases that withstand Ireland attack: underlying felony was providing drugs, DUI,
poisoning food, armed robbery, kidnapping, felony child abuse by malnutrition.
 Katz: already wants to kill + expects homicide charge anyway, no need F-M Rule

Wilson: ∆ forcibly entered estranged wife’s apartment (there w/ lover) carrying a gun w/
intent to kill her + killed her. Underlying: burglary (enter w/ intent to commit a felony).
 F-M Rule can’t apply to burglary-murder cases in which entry wouldn’t be a felony
but for intent to commit the assault, and the assault is an integral pt. of the homicide.
 Katz: A burglary that results in death qualifies for F-M. Prosecutor can’t bypass
provocation defense (seeing wife w/ a different man) using assault w/ a deadly
weapon. Re-described assault w/ a deadly weapon as a burglary.
o But reason it was a burglary was so he could assault and kill wife
 Ct: Can’t re-label same conduct to attain F-M conviction. Not going to let you bypass
provocation defense by turning something that might be manslaughter into F-M.
 Sears: ∆ entered cottage w/ intent to assault wife. Daughter intervened and was killed by ∆.
 Prosecution: predicate felony of burglary w/ intent to assault the wife was independent
of the homicide of the daughter so F-M Rule should apply
 Katz: P not mislabeling like in Wilson.
o P: Different enough on the facts + justifications of merger doctrine no apply
because—do get marginal deterrence (no enter a house that has 3 people), do
get general defense (no enter a house if know you’d get murder conviction if
kill someone accidentally)
o P: As for concern w/ disruption—eliminates provocation defense—but it
doesn’t because provocation defense not apply because girl did not provoke

Debate: whether provocation defense available when non-provoking 3rd party is killed.
Depends on whether provocation defense is viewed as an excuse or a justification (can’t
justify killing an innocent)

Ct. used totally new consideration: comparative judgment: here a quasi-unintentional killing.
In other cases, there was intent to kill people who killed. This guy was slightly better than
guys in Ireland and Wilson (no intent to kill daughter) so we’re not going to have him do
worse than other ∆s and so we won’t apply F-M rule.

Burton: refines Ireland: underlying felony an armed robbery

Integral to the homicide = a single course of conduct w/ a single purpose
 ∆: armed robbery not independent of homicide because it necessitates an assault
o underlying offense an integral part of the homicide
 Ct: No. Armed robbery sufficiently independent to support F-M conviction
 Homicide results from conduct (armed robbery) w/ an independent felonious purpose
(to acquire another’s property)
 Katz: defense wanted to lower charge to manslaughter by arguing provocation. But F-
M charge prevented that.
 Katz: not disrupting homicide statute, surely deters armed robberies and deters people
from acting carelessly while conducting robbery.

Determining Whether to apply F-M Rule:

1. Would applying it to similar cases result in marginal deterrence (of the individual)?
a. Would it make ∆ more careful as he perpetrates felony?
2. Would it result in general deterrence? Keep community from committing felonies
a. Gen. deterrence not have a lot of appeal in context of quintessential assault case
3. Would it disrupt homicide grading?
a. Yes, if it gives you a different kind of homicide than would be possible under the
homicide statute: so maybe apply merger exception.
4. Compare to cases where F-M Rule did/did not apply (is it like Ireland or Burton?)
5. Comparative Judgment Argument: Courts wrong to consider this but do (Sears Ct): Did
the ∆ behave less badly than Ireland? If yes, should get benefit of F-M exception.

Hypo: Al & Chloe: giving medicine treated as underlying offense for F-M rule: 1) prosecution
would try to get around provocation defense by using F-M rule—are we bypassing exceptions to
homicide statute or disrupting grading of homicide statute? Would it be a lesser kind of homicide
without F-M (due to provocation defense)? So, yes, the merger doctrine should apply here.

Misdemeanor manslaughter:
 Common law: accidental homicide that occurs during the commission of an unlawful act
not amounting to a felony (no stop at stop sign + kill pedestrian; other courts limit to
inherently dangerous misdemeanors)
 NOT recognized by MPC

Causation
 Required for all result crimes but not conduct crimes (attempts)
 Need but-for cause before you can move on to proximate cause (need both for liability)

Cause-in-Fact (But-For Cause)

 Simple test: but-for ∆’s act/omission, would the harm have occurred? [Necessary?]
 If Acosta pilot had crashed due to a heart attack caused by blood clot (not stress of the
chase) that would have killed him at that moment no matter what the pilot had been doing
 no reason to hold ∆ responsible.
 Montoya. A dropped B, who had been shot by C, in a secluded location. A convicted of
murder on theory that he caused death by preventing B from getting help. Testimony:
medical attention only “could have” saved B’s life. Conviction reversed because
prosecution could not prove that B would have died but for A’s actions.
 Muro. Husband fractured ∆’s daughter’s skull. ∆ waited 4 hours before getting help.
o Because State only proved possibility of survival, did not prove but-for.
 Revised test: But-for the ∆’s conduct, would injury have occurred when it did + as it did?
o Multiple sufficient causes—ask: would result have occurred when it did?
 Hastened/worsened death process? If not, not a but-for
 Problem: when ∆’s conduct actually prolongs life (would have died from
bomb attack at home but was actually killed by ∆’s gunshot later)
o Simultaneous sufficient causes: would the result have occurred as it did?
 Both A & B shoot C at same time and it’s unclear whose shot killed C
 describe as death by 2 mortal wounds: described so, both ∆s are a cause.
 If determined that A’s gunshot actually killed C, then B not but-for. B
tried to kill C but his efforts were obstructed by a more effective killer.

MPC 2.03 (1): Conduct is the cause of a result when:

a. it is an antecedent but for which the result in question would not have occurred; and
a. Commentary: asks concurrent sufficient causes to be described as “death from
two mortal wounds,” as above, with each party being a but-for cause
b. the relationship between the conduct and result satisfies any additional causal
requirements imposed by the Code or by the law defining the offense

Proximate Cause: In addition to being but-for cause, act must be sufficiently related to harm.
 Easy when a direct cause: no other but-for causes intervene it + the prohibited result.
o Direct cause is generally a proximate cause.
 Forseeability: ∆ should be able to foresee the harm his action could cause
o Zoom in/out: no see foreseeability if you look narrowly @ minute details.
 o Even if never happened before or highly unlikely, can still be foreseeable. Acosta.
o Can’t foresee that lightning would strike as you drive guy you punched to the ER
or that a lunatic would stab your victim when victim in hospital from minor would
(unless your victim was at a high-security penal institution)
 Could be Forseeable but Proximate/Not Proximate
o Voluntary Intervening Act that brings about bad result (often ∆ not liable)
 Easy case: intervening negligent act (medmal) liable, no break causation
 Reckless intervening act (straddle fence, not liable if break causation): ∆
created dangerous condition but competitor recklessly swerved into traffic
 Kern: perhaps also constrained choice
 Matos: police officer falls in airshaft while pursuing robber
 Drag Racing
 Russian Roulette
 Knowing/intentional intervening act breaks chain
 Enemy sees Deceased in hospital and stabs him, ∆ not liable
 Suicide: ∆ encourage suicide but victim is w/in her rights; voluntary
intervening act of victim (∆ not liable even if have knowledge/intent)
 3rd party (stay or I’ll shoot people below, she leaves, ∆ liable—it’s on him,
not her)  false choice.
 Valade, impaired choice, not fully voluntary (constrained volition)
 Created dangerous conditions or put victim in position where could be
acted upon by harm-causing force (liable)
o Involuntary foreseeable human act usually does not break chain: B’s spasm
caused by A’s drugs, (A tells B to call a #, B doesn’t know it will trigger a bomb)
o Constrained Volition where intervening act starts to look involuntary
 Could be Unforeseeable but Still Proximate
o Transferred Intent (waive foreseeability even if intervening conditions weird), G!
o Thin-Skull/Pre-existing Abnormal Condition: (no matter)
o Omissions as Causes (Babysitter has duty to rescue/PC, bystander doesn’t)
o Bizarre Omissions: Ambulance unforeseeably didn’t reach victim (herd of
buffalo) but victim left in same condition ∆ put him in (liable): a bizarre
intervening event prevented rescue
o Involuntary unforeseeable intervening act: ∆ enables a lunatic to shoot the
police—causal link not broken
o Intended consequences never too remote. ∆’s mens rea to kill X; but other actors
intervened to administer poison in a way she didn’t predict: PC! You got exactly
what you wanted! particularly true if both the result and means of effecting the
result were intended.
 People v. Acosta
(highly extraordinary v. reasonably forseeable)

Facts: ∆ leads police on a car chase. Two helicopters following him crash into each other. ∆
charged w/ second-degree murder for death of pilots in crash.
 Helicopter closed too rapidly; did not maintain radio communication, FAA violation
 Such a crash had never occurred before

Majority: Result not “highly extraordinary.” Foreseeable that ∆’s pursuers, in the heat of
chase, might act negligently/recklessly & crash. Proximate cause.
Dissent: Neither the intervening negligent conduct (pilot mistake) nor the risk of harm was
foreseeable. Those on road were w/in ∆’s range of apprehension, but not helicopters. No PC.

∆s who recklessly started fire in remote woods. Aircraft crash reasonably foreseeable because of
location of fire—an effort to control it bound to require planes to fly at low altitude.

People v. Arzon
∆’s conduct does not need to be only causal factor so long as it is an indispensable link;
put victim in a position where he could be acted upon by harm-causing force

Facts: ∆ intentionally set fire. Firemen enveloped by smoke from 2nd independent fire.
Combination of dense smoke of 2nd fire + ∆’s fire made evacuation difficult. Fireman died.
 Kibbe: ∆s abandoned robbery victim by roadside. Actually killed by a passing truck.
o Ultimate harm foreseeable result of ∆’s acts
o Obscure connection between ∆’s conduct + victim’s death no PC (∆ stabs but
victim dies due to Doc’s performing unrelated procedure on him).
 Irrelevant that 2nd fire intervened and contributed to conditions that caused death
o Foreseeable that firemen would respond to ∆’s fire + be exposed to harm
o Fire set by ∆ an indispensable link in chain of events causing death
o Put victim in a position where he was vulnerable to independent force.

People v. Warner-Lambert
∆ should be able to foresee specific triggering cause (zoom in)

Facts: Explosion at chewing-gum factory. ∆s were warned that dust created explosion hazard.
 Explosion could have been caused by sparking in machines.
 Ct: chain of physical events by which explosion occurred not irrelevant. Could have
been lighting of a match by an intruder or a bolt of lightning.
Katz: Hard case: Werner-Lambert seems totally foreseeable, so why not assign liability?
 As in Kibbe—we can make the most unforeseeable case look foreseeable (zoom in).

 Katz: Usually, if focus on minute details, can make the outcome look unforeseeable.
o But tortured effort: If shoot guy in head, hard to say unforseeable he would die.

Eggshell Plaintiff/Thin Skull Plaintiff (People v. Stamp—heart attack post robbery):

  Liability can exist where ∆ harms vulnerable victim who dies or suffers unforeseeable
harm because of a pre-existing condition of which ∆ was unaware
 Robber takes his victim as he finds him  liable for extent of injury
o ∆ guilty where punches a drunk who died from brain swelling b/c impact of punch
was affected by chronic alcoholism. Substance abuse before illegal blow.
 Exception: where death results from an unusual disease unforeseeably contracted by
victim after an assault, even if victim would not have contracted the disease but for the
situation created by the injuries
o ∆ stabs B. B recovers, uses cocaine which raises his BP and wound bleeds again +
dies. ∆ not liable b/c substance abuse occurred after stabbing.
 Courts disagree about extent to which subsequent medical mistakes affect ∆’s liability
o Hospital grossly negligent but stab wounds would’ve been fatal in absence of
treatment  ∆ liable (@ most, treatment a contributing factor, not sole cause)
o ∆ thrown from car; officer failed to promptly summon help for decedent.
Intervening cause which gets ∆ off hook? No. Failure to get prompt medical
attention not an unlikely hazard for a victim of a car accident. Jury question.

Omissions as Causes
 If an intervening actor fails to act, that failure is generally not a superseding cause, even
if the intervenor had a duty to render aid. Because foreseeable.
 Intruder pushes baby into pool. Babysitter refuses to help and baby drowns. Babysitter
had duty to save child but did she cause drowning?
o Michael Moore: it was intruder, not babysitter that was cause.
o All courts treat an omission as PC when there’s a duty to act (for babysitter, not
bystander). Note, intruder would also be on hook as a PC.
o Don’t get off hook just cuz your passenger didn’t wear a seatbelt if you were
driving negligently + caused her death

Bizarre Omission: Liability still imposed where harm is exacerbated by unforeseeable failure of
another individual to take action to help.
 ∆ injures victim. Bizzare event keeps ambulance from coming (unforeseeable omission):
victim left in same condition as ∆ put him in  ∆ liable

Transferred Intent:
 CL: the intent w/ respect to the intended target may transfer to the actual target
 Intent transfers only w/in same type of attempted harm (not from intent to shoot insect to
human or from intent to kill human to breaking of window resulting from missing shot)
 ∆’s Intent (mens rea) to kill A is transferred to B, who is actually killed, so ∆ guilty.
o ∆ shoots at Lucky, intending to kill him. Bullet misses but ricochets oddly and
then strikes and kills Unlucky.
o All courts: though ultimate victim + result is unforeseeable, still find PC (∆ guilty
for killing Unlucky).
o MPC would likewise convict (2.03(2))
o What if kill intended victim but bullet passes through him and to 2nd victim
behind. Both die. Is ∆’s intent used up?
 Courts are divided. If used up, no intent left to transfer (did not intend to
kill the 2nd victim). If intent is inexhaustible, it can transfer to multiple
victims (did intend to kill the 2nd)
 o Applies to non-homicidal crimes too: ∆ attempting to strike wife, hits baby.
Convicted of intentionally injuring child.

MPC 2.02. Analyze first under mens rea.

 If result element requires P/K, satisfied if w/in purpose/contemplation of actor
 If result element requires R/N, satisfied if aware of the risk or should have been aware.

MPC 2.03.2. Causal Relationship Between Conduct + Result

 when purposely or knowingly causing a particular result is an element of an offense, the
element is not established if the actual result is not w/in the purpose or contemplation
of the actor unless:
o the actual result differs from that designed or contemplated only in that a
different person/property is affected or that harm designed or contemplated
would have been more serious/extensive than that caused [no transferred intent to
kill A + B if design was just to kill A]; or
o the actual result involves the same kind of harm as that designed/contemplated
and is not too remote or accidental to have a just bearing on actor’s liability or
gravity of his offense
 when recklessly or negligently causing a particular result is an element of an offense, the
element is not established if the actual result is not w/in the risk of which the actor is
aware or, in the case of negligence, should have been aware unless:
o the actual result differs from the probable result only in that a different
person/property is affected or that the probable harm would have been more
serious/extensive than that caused; or
o the actual result involves the same kind of harm as the probable result and is not
too remote or accidental to have a just bearing on actor’s liability or on the gravity
of his offense.
 When causing a particular result is a material element of an offense for which strict
liability is imposed by law, the element is not established unless the actual result is a
probable consequence of the actor’s conduct.
o In a F-M murder jurisdiction using MPC causation principles: ∆ tries to rob a
bank, teller electrocuted by pressing the burglar alarm switch. ∆ not liable for the
death because the actual result—death by electrocution—was not a probable
consequence of robbing a bank.

Subsequent Human Actions

Human action subsequent to ∆’s but-for cause that is voluntary, knowing, intelligent, and free
from coercion is superceding, breaks the causal chain + relieves ∆ from being the PC.
 Including the victim’s own. Did the victim choose to get on the plane? But knowingly
and intelligently? Would full knowledge have affected victim’s choice?
 People v. Campbell
Victim’s own act of suicide is a voluntary intervening act.

Facts: ∆ encouraged B to kill himself; gave B a loaded gun and left. B shot and killed himself.
 B was heavily intoxicated, ∆ knew this.
 Homicide is the killing of one human being by another.
o Suicide excludes by definition a homicide.
 ∆ did not kill another person, he just provided the weapon + left

Kevorkian: Murder if ∆ participates in final overt act that causes death but not where ∆ merely
involved in events leading up to final overt act (just furnishing the means).
 Exception for reckless aid: where one recklessly/negligently provides means, guilty, e.g.
giving a gun to a drunk/agitated person.
Dissent: no like distinction between final overt act + events leading up to. Kevorkian did not pull
the trigger but he helped her in completing the act.
Hypos: setting up killing apparatus that deceased herself activates, putting poison w/in
deceased’s reach, holding gun in position

Current Law reflected by Campbell & Kevorkian cases: one who successfully urges or assists
another to commit suicide is not guilty of murder or even manslaughter, so long as deceased was
mentally responsible, acting voluntarily, and not forced/deceived.
 At what point does victim’s intoxication render helper guilty of homicide (Campbell
victim had been heavily drinking)?
 MPC presupposes that one can “cause” the entirely voluntary suicide of another.
 MPC 210.5: permits convicting a person of criminal homicide for causing another to take
his life but “only if he purposely causes such suicide by force, duress, or deception.
 Most states have a separate offense for assisting a suicide.
o MPC (2nd degree felony (punishable like manslaughter) if causes
suicide/attempted suicide, misdemeanor if not)

Intervening/Superseding Human Action

 Voluntary Intervening Actor Doctrine: 1st Actor can’t be held responsible for subsequent
voluntary human action even if foreseeable result of 1st actor’s conduct.
o Not liable for Doc’s grossly negeligent/reckless medical care
 Law of Causation treats physical events that follow from a person’s actions as caused by
him, BUT does not treat human action that follows from an initial actor’s conduct as
caused by him, even when the subsequent human action is foreseeable.
 Involuntary intervening act usually does not break the chain of causation.
o B’s involuntary acts (B’s spasm caused by A’s drugs), (A tells B to call a number,
B doesn’t know it will trigger a bomb), (A constrains B by compulsion of duty,
duress, or emergency situation created by A): fireman in Arzon, helicopter pilot in
Acosta, police officer who kills in performance of his duty (∆ thrust the dilemma
upon the police officer)
 Hard Cases: Where subsequent voluntary actions were constrained by the 1st Actor

Constrained Volition: How constrained/impaired vs. voluntary was her choice? Foreseeable?
 Stephenson v. State
∆, who commits a felony like attempted rape and inflicts upon victim physical + mental
injuries which foreseeably renders deceased irresponsible + suicidal  guilty
If you take away agent’s/victim’s voluntariness, can’t be intervening responsible agent

Facts: ∆ abducted woman, assaulted + tried to rape her, she took poison, died.
 Preslar case no apply here: wife who left husband spent night cold outside dad’s
home: she, w/out necessity, exposed herself and husband ∆ not guilty
o (∆’s dangerous force no longer dangerous once victim got to safety)
 Instead, Valade: ∆ guilty raped a girl who jumped from window to get away & died
 ∆ attempted rape, his control over deceased was absolute. She was justified in
concluding that any escape attempt would be unsuccessful (had tried before).
 Taking of poison was part of the attempted rape and in response to it. One transaction.
 U of M Law Review: difficult because says unlawful infliction of shame leads
naturally to suicide + so amounts to a killing by him who inflicted it.

Hard cases:
 Victim of car crash kept alive on ventilator, asked to be taken off, understanding that her
death would be probable. Injuries survivable if she remained on ventilator.
o Docs complied, ∆ convicted of negligent homicide
o Constrained choice? Life of constant pain.
 Jehovah’s witness denied blood transfusion which would have restored her to health. Is
this a preexisting condition (∆ liable for homicide) or intervening-actor case (no liability)
 King David: orders troops to draw back so his Captain be killed.
o What if order army to fight in usual way but nonetheless chose Captain to lead
troops from most dangerous position.
o Glanville Williams: It is the enemy intervening actor, not King David, who kills
the Captain. ∆ has not committed/helped the act of killing.
o Aads: Obvious that it was the enemy and not the general who killed the Captain?

Subsequent Voluntary Actions that Recklessly Risk the Result: Fence Straddling Cases
 Distinction between intentional + reckless choices by subsequent actor
 Previous section, subsequent actor intended the harm in question.
 Here, subsequent actor—although reckless—did not intend to cause harm (drag racing)
 First, courts easily hold 1st actor liable when 2nd actor’s risky choices were result of a
predicament created by the 1st actor (2nd actor not fully voluntary).
 Kern: White teens assaulted black men. Teens chased men + threatened to kill them. One
black man tried to escape by running across a highway. Was struck by a car + killed.
o Ct: ∆’s action sufficiently PC to warrant liability. They forced this reasonable
alternative on the deceased. Can’t argue he chose the wrong escape route!
 Matos: Police officer chasing armed robber fell down air shaft. Ct. upheld F-M.
 Commonwealth v. Root
Deceased’s choice not impaired; a reckless intervening act.
Facts: Drag race. Deceased, in trying to pass ∆’s car, hit by a truck.
 Deceased’s act was a voluntary/reckless intervening act that broke chain of causation.
 Dissent: ∆ helped create the danger.
o Victim’s act a natural + forseeable reaction to the stimulus of the situation

State v. McFadden (opposite of Root)

Facts: Drag race. Deceased lost control of his car during drag race and swerved into oncoming
traffic, killed child in 2nd car and died himself. ∆’s car did not physically contact either car.
 Acts/omissions of 2+ people may work together to cause harm and each is thus a PC.
 Foreseeable. Don’t need “direct causal link.”

Commonwealth v. Atencio
Facts: Russian roulette. Deceased + others drinking.
 Normally, deceased’s voluntary intervening but reckless act would be a bar.
 ∆s helped to bring about Deceased’s foolish act
 Mutual encouragement in a joint enterprise.
 Drag Racing: must of it is left to skill/lack of skill of competitor
 Russian Roulette: luck determines location of bullet but outcome is certain for unlucky

Drug Supplier Variation: Courts typically hold liable someone who provides drugs to another
who voluntarily takes them + dies (ignore deceased’s intervening act).
 Hold drug supplier responsible for the foreseeable but freely chosen acts of purchaser.
 Paradox: hold Lydia liable for homicide if she just wants Gus to enjoy the drug but not if
she gives him drug to help him commit suicide.

Concurrence
∆ must possess the requisite mens rea at the same moment that her voluntary conduct (or
omission) causes the social harm (A/R).
 But satisfied when voluntary act + mens rea concur but social harm comes later (victim
dies 3 mos later by which time ∆ has expressed remorse and no longer wishes death).
 Not satisfied when innocently takes time but afterward is glad that she did.

 Law of Causation not available to hold responsible those who instigate/help another to
commit a crime: need other doctrines of complicity & conspiracy

Complicity

 Accomplice = someone who doesn’t actually commit the offense but held accountable for
conduct of principal w/ whom he has associated himself.
o Accomplices + principals are guilty of the same offense.
o Complicity is not a separate offense; it’s a way of committing a substantive
offense like murder or rape. Primary party’s acts become his acts.
  May be convicted of any offense committed by the primary party w/ the
accomplice’s intentional assistance.
 B intentionally helps C rob V, B liable for robbery. If C fails but
guilty of attempted robbery, B liable for attempted robbery.

Mens Rea for Accomplice Liability

Accomplice must intentionally aid the principal to commit the crime charged. Common Law
1. intent to assist the primary party commit the offense [intentionally provides gun]
2. mens rea required for the commission of the target offense [intentional murder]

Most courts would say that S renting house to illegal gambling enterprise not an accomplice
unless he shares in the criminal intent of the principal.

Hicks v. United States

Facts: Stand Rowe (SR)) aimed his gun at deceased. Hicks laughed + said to deceased “take
off your hat and die like a man.” SR shot the deceased. SR + Hicks rode off together.
 Hicks: didn’t know if Stand Rowe would shoot me or deceased—wanted to show him
that I was a compatriot and cuz he demanded that I show him the road to travel after.
 Ct: no evidence of any prior conspiracy or arrangement from which to say whether
Hicks’ words or presence were intended to aid/abet Stand Rowe.
 Hicks purpose to save his own life or purpose to encourage/be helpful to Stand Rowe?
o if it was a means: get purpose. Convict for murder as an accomplice.
o byproduct: just wanted to save self, killing unfortunate byproduct (no purpose)
 Katz: case shows us difficulty of operationalizing Gladstone purpose requirement.

State v. Gladstone (Conduct Crime)

MR req’t for accomplice liability: purpose to aid + purpose that principal commit crime

Facts: Undercover cop asked Gladstone about buying weed. ∆ said he didn’t have enough to
sell but gave him name + address of Kent who did have enough and was willing to sell. Cop
went there and bought weed from Kent. No evidence of communication btwn ∆ + Kent.
 Even w/out prior agreement, a bystander to a robbery could be guilty as an accomplice
if he purposely helped robber in perpetrating the crime.
 But need purpose: no aiding/abetting unless one participates in venture that he wishes
to bring about and by his action to make succeed.
o Need not be physically present to aid/abet

- Knowingly assist sale ≠ purposely assisting sale.

- State v. Wilson. Ct. found intent to encourage X’s sale where ∆ saw friend (B) hesitate over the
price X quoted for weed said, “it’s good stuff!”
 If ∆ take B to X + remained present through drug transaction  accomplice liablity.

MPC Provisions
*commission of the offense = the conduct, not the result
MPC 2.06(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 (his accomplice), or both.
 Does not matter that your assistance was totally ineffective, still on the hook for
commission of the crime if principal committed it

2.06(3): Gladstone Conduct Crimes:

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
i. Solicits such other person to commit it; or
ii. Aids, agrees, attempts to aid such other person in planning or committing it; or
iii. Having a legal duty to prevent commission, fails to make an effort to do so; or
b) His conduct is expressly declared by law to establish his complicity

MPC definition of solicitation: with the purpose of promoting/facilitating the commission of a

crime, he commands, encourages or requests another person to engage in specific conduct which
would constitute such crime or an attempt to commit such crime or which would establish his
complicity in its commission or attempted commission [act complete the instant the actor
communicates the solicitation to the other person, no matter if solicitee refuses; only an
attempted solicitation if solicitation letters don’t reach solicitee or solicitee doesn’t hear]
[captures ∆ as solicitor even if knew pocket empty: solicitation of attempted larceny] [also
captures ∆ asking X to be his accomplice + not just his perpetrator]
 Key idea: ∆, the principal, induces another to commit a crime
 A crime in itself + a basis for accomplice liability
 Guilty of murder via solicitation if murder occurs, or attempted murder if doesn’t, or
conspiracy if solicitee agrees but takes no action, or just solicitation if solicitee refuses
o Note: once solicitee agrees, a conspiracy has been formed
o Could have a conspiracy w/out a solicitation (agreed w/out ∆ soliciting)
 Defense: must completely + voluntarily renounce criminal intent + persuade or otherwise
prevent the solicitee from committing the crime
 Distinguish from use of X as innocent instrumentality

2.06(4): McVay Result Crimes: If Assists in the Conduct that Causes Such Result
When causing a particular result is an element of an offense, an accomplice must have intent to
further the underlying conduct committed by the principal, but for the result, he need only have
the mens rea w/ respect to that result that is sufficient for the commission of the offense
 ∆ must have wanted (purpose) risky conduct to occur + M/R of person who caused result
 If you’re an accomplice to a felony, F-M can be applied.

Conduct v. Result Crimes

Conduct Crimes: Rape. Selling drugs. Could be made to look like result crimes.
 Everything has an early part + a late part. Call front-end conduct + back-end result

Mens Rea for Results + Attendant Circumstances

 State v. McVay (Result Crime)
∆ Didn’t have purpose as to the result but had purpose as to the conduct and shared the
gross negligence mens rea of the principals: that’s enough for accomplice liability.

Facts: ∆ convicted of accomplice liability in deaths of boat passengers b/c of boiler room
explosion. He hired the principals and let ship operate even though he knew it was defective.
Rationale: jury could find that ∆, before the principals set off, intentionally directed the
grossly negligent act. Principals convicted of involuntary manslaughter due to their gross
negligence. Enough that ∆ purposely facilitated risky conduct, no need purpose as to deaths.

Link to cause: Drivers of boat decided to drive something they knew was in bad shape. If they
didn’t know, hold ∆ for manslaughter? Yes. But-for and PC (involuntary intervening actors).
 Here, intervening actors extremely recklessness. Courts split on whether breaks causation

Commonwealth v. Roebuck
Modern application of § 2.06(4)
Facts: Victim lured into an apartment where he was unintentionally shot + killed by the
principal. ∆ participated in orchestrating the events but did not shoot the victim.
∆ argued: can’t intend to aid an unintentional act (logically impossible).
Rationale: purpose of MPC § 2.06(4) is to hold accomplice liable for contributing to the
conduct to the degree his mens rea equals mens rea required to support principal’s liability.
 Intended the underlying conduct (staging a dangerous altercation).

Attendant Circumstances: Divergence. MPC silent on whether, for accomplice liability, purpose
requirement applies to attendant-circumstances element of the offense. Courts should decide.
Katz: Generally want knowledge w/ attendant circs (even w/ SL crimes like statutory rape).
 B is a convicted felon in a jurisdic. where it’s a crime for convicted felons to have guns.
C gives B a gun w/out knowing B is a convicted felon. C liable as an accomplice to B’s
possession offense? C helped B violate statute, did C intend to help B commit a crime?
o Ct. #1: No, not w/out proof that C knew/should have known B a convicted felon.
o Ct. #2: Yes, cuz B is SL for knowing his felon status, no greater MR req’d for C.
 Right result to permit liability on basis of negligence? If Gladstone’s
knowing assistance was insufficient for liability in the absence of purpose
to aid, why should mere negligence be enough here?
 B encourages A to have sex w/ girl F. F underage but A + B believe she is an adult. If
crime of statutory rape is SL, A is guilty. Should B be liable as an accomplice?
o Ct. #1: Can hold B liable w/out B having purpose/knowledge, at least where B
was present @ scene and had opportunity to assess girl’s age + show recklessness.
o Ct. #2: Need to find that B had knowledge of the victim’s age.
o What about liability for C, who drove A there?
 2.06(3) would have to purposely assist in statutory rape. Would have to
know age in order to help even if a SL crime.

Results, Attendant Circs + Comparing to Liability for Attempt

MPC more demanding in prosecutions for attempt than in prosecutions for complicity. When a ∆
is charged w/ attempt, MPC requires that ∆ have the purpose to produce the result or the belief
that his conduct will cause the result, even when recklessness or some lesser mens rea would
suffice for conviction of the completed offense.
 When a ∆ is charged w/ complicity, the required mens rea for the resulting harm is not
purpose, but only the mens rea required for the commission of the charged offense.
 W/ respect to attendant circumstances, MPC is less demanding in cases of attempt than in
cases of complicity, holding that the mens rea for attendant circumstances in cases of
attempt is not purpose, but only the mens rea required for the completed crime.
o In strict liability statutory rape example above, a person who tries but is prevented
from having sex w/ underage female would be guilty of attempted statutory rape,
even if he had no grounds to suspect she was underage.
o MPC refuses to impose a similar, lower mens rea for attendant circumstances in
cases of complicity, but leaves it to the courts.
 Lowering means Dotterweich’s wife an accomplice if she wakes him up
so he can get to work + so helps him selling mislabeled drugs (SL crime)

People v. Russell
Adversaries can be accomplices, can intentionally aid each other in committing a crime

Facts: 3 ∆s in a shootout. Teacher killed by stray bullet, didn’t know whose bullet it was.
 Theory: each of them “intentionally aided” the ∆ who fired the fatal shot.
Rationale: All acted w/ mens rea required for murder conviction (recklessness) + all
purposely aided/encouraged each other to create lethal crossfire that caused death
Like drag race where only one hits an innocent: adversaries are accomplices, sharing reckless
mens rea w/ respect to result + where non-hitter purposeful as to conduct (encouraged it)

Would die if didn’t participate; ∆s didn’t want to be in a shoot-out (no purpose as to conduct).

Actus Reus of Complicity: MPC aiding, agreeing to aid, attempting to aid, soliciting, failing to
aid when one is under a duty to aid. But-for contribution not required

Wilcox v. Jeffrey
Still liable if you are a redundant part of the group that did it.
Facts: ∆ a reporter who welcomed jazz musician at airport, went to hear him play, reported on
performance. ∆ did not arrange visit. Ct: ∆’s presence + payment encouraged illegal playing.
Redundant Help: No one person but-for cause. Group essential to cause harm, individual not.

Black letter law: you can be a helper w/out helping.

MPC 2.06(3): Yes, actually aided/attempted to aid.
 MPC acknowledges that many actors are redundant, don’t make a difference.

But-for the actions of the entire group acting w/ requisite mens rea, would harm have occurred?
 Complicit if redundant (witnessed rape)
 Not complicit if ineffectual (watching on TV)

Materiality of the Aid

 Presence not enough but little more required, psychological aid enough: assure that you
won’t interfere; presence + prior agreement to assist
 Attorney General v. Judge Tally
Accomplice’s assistance doesn’t need to have but-for causational link to the result.

Facts: ∆ went to telegraph office, found out that Ross’ relative had sent Ross a warning that
men w/ guns were following him. Tally sent his own telegram to operator telling him not to
deliver the warning to Ross. Operator received both telegrams + failed to deliver message to
Ross. Skelton bros. caught up w/ Ross + killed him. Judge Tally an accomplice?
 don’t know if Skelton bros. knew that Judge was in preconcert w/ them
 Point: Lower A/R requirement for complicity liability, as Judge’s act to help Skelton
bros. arguably didn’t make a difference (no but-for causation) but A/R still met.

Attempted Complicity:
 Liable as accomplice even if assistance causally unnecessary to commission of offense
(principal would’ve done it anyway). Accomplice must help but needn’t cause the crime.
 In Hicks, ∆ shouted encouragement to Stand Rowe to spur him to kill Colvard but Rowe
was deaf + unaware of ∆’s presence. Failed to aid.
o Common Law, no liability: need to actually aid, not just attempt to aid
o MPC 2.06(3) fixes this: “attempts to aid” sufficient
 Liable if he thinks he is helping
 Not liable if he knows it ineffectual (knows deaf)
 Tally: if operator ignored Judge’s instructions but failed to deliver warning (Ross killed)
o Common Law: Attempting to help does not amount to helping
o MPC 2.06(3) fixes this: “attempts to aid” sufficient  murder as an accomplice
 Tally: if operator followed Judge’s instructions + did not deliver warning but Skelton
Bros. never caught up w/ Ross
o CL: no accomp. liability for murder but yes for attempted murder
o MPC: no accomp. liability for murder but yes for attempted murder
 Tally: if the Skelton Bros. did catch up but were effectively resisted by Ross?
o Captured by MPC 2.06(3): “attempts to aid” sufficient  attempted murder
 CL: if principal does not attempt, accomplice can’t be found to have aided attempt.
o MPC: opposite view, accomplice liability for attempt, not for commission

Complicity by Omission + Protecting Kids from Abuse

MPC 2.06(3): ∆ can be an accomplice if have legal duty to prevent the offense but fails to do so
w/ the purpose of promoting or facilitating the crime (police officer who purposely closes his
eyes to a burglary liable but not if he fails to act because he is scared or unaware).
 Most courts: parents/child welfare agencies liable under aiding/abetting theory for a
crime committed by a 3rd party when they fail to protect their children from the abuse.

Feigned Principal with no MR or AR. Sometimes hold accomplice liable anyway.
 State v. Hayes
act of a feigned accomplice (lacking mens rea to commit crime) cannot be imputed to a ∆
Facts: ∆ proposed to Hill that they burgle a store. Hill, a relative of owners, feigned
acquiescence to get ∆ arrested. ∆ raised window but Hill climbed through, handed out bacon.
 Need common purpose between ∆ + Hill to make ∆ responsible for Hill’s acts. Not
guilty because not assisting a crime, just thought he was.

Common law: the act of a feigned accomplice may never be imputed to a ∆.

MPC would treat differently. MPC gives accomplice liability even in cases of a feigned
accomplice or where principal has immunity from prosecution (2.06(7)).

Vaden v. State (opposite of Hayes)

“act of a feigned principal can be imputed to an accomplice”
Can be an accomplice even when the principal hasn’t committed a crime
Facts: ∆ took undercover cop to hunt illegally. ∆ piloted aircraft to make it easier for cop to
shoot game w/ a gun ∆ had given him. Cop killed 4 foxes. ∆ convicted as an accomplice.
Majority: cop justified under cop exception (couldn’t be convicted of a crime cuz he a cop)
but justification stays w/ cop, ∆ doesn’t get benefit of it.
Dissent: Could be abused: under Majority’s view, ultimate liability of ∆ depends on which
crimes the agent chooses to commit in order to secure conviction of his “accomplice.”

When a Principal Commits No Crime

Hornbook common law: a ∆ can’t be an accomplice to a crime that wasn’t committed (like self-
defense justified murder). Need a crime to impute to an alleged an aider and abettor. Problems:

 Nonculpable principal as innocent intrumentality. Hayes asks a kid to go through the

window. In a sense, ∆ acts through the innocent or uses the innocent as an instrument.
At common law, was considered a principal for such behavior.
o MPC 2.06(2) [ways you can be responsible for the crimes of another]
o (a): A person is legally accountable for the conduct of another when: acting w/ the
mens rea sufficient for the commission of the offense, he causes an innocent or
irresponsible person to engage in such conduct. [∆ deceives by saying “It’s my
house, go in and get this for me” OR ∆ holds a gun to X’s head—deals w/
argument that innocent didn’t commit a crime].
o (b): he is made accountable for the conduct of such other person by the Code or
by the law defining the offense; or
o (c): he is an accomplice of such other person in the commission of that offense.

 Limits of the innocent agent doctrine.

o Statute defines crime so that it can only be committed by designated class of
people of which ∆ is not a member, e.g. statute prohibits bank teller from entering
false records; one who is not a bank teller can’t commit such an offense.
 If ∆ helps a bank teller who intentionally does so, ∆ liable as accomplice.
 If ∆ dupes an innocent teller into doing so unknowingly, ∆ can’t be held
liable because officer committed no crime.
  Could try to treat ∆ as a principal using the officer as his
instrument but that doesn’t work because he is not an officer or
employee and so can’t violate the statute.
 Courts solved by: one is criminally liable as a principal for causing
another to commit criminal acts where the other, even though
innocent, has the capacity to commit acts the ∆ does not.
o MPC 2.06(5) A person who is legally incapable of committing a particular
offense himself may be guilty thereof if it is committed by the conduct of another
person for which he is legally accountable, unless such liability is inconsistent
with the purpose of the provision establishing his incapacity [a husband can’t
legally rape his own wife but may be convicted as an accomplice in her rape]
 The culpable but unconvictable principal.
o ∆ aided D in espionage but D can’t be convicted due to diplomatic immunity.
o Cts: no reason to grant the accomplice a defense just cuz principal has a defense.
o MPC 2.06(7): see below.
 The acquitted or less culpable principal.
o Cts: Accomplice may be convicted even if principal acquitted. Different juries
o If principal has an excuse (provocation, insanity, duress) that mitigates down his
charge (to, say, manslaughter), not available to the accomplice (held for murder).
 Accomplice’s punishment based on his own mens rea
o If principal has a justification (self-defense, necessity), accomplice not liable
o MPC 2.06(7): An accomplice may be convicted on proof of commission of the
offense and of his complicity in it, even though 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 or has been acquitted.
 Not liable as accp. for conduct crimes if principal justified (helped a cop)

 When the “Accomplice” is a Victim + Ways to Terminate Complicity

o Cts: Minor can’t be convicted for aiding/abetting or conspiring to commit
statutory rape upon herself because statute was designed to protect her.
o MPC 2.06(6) Unless otherwise provided by MPC or by law defining the offense,
a person is not an accomplice in an offense committed by another person if
[creates immunity for accomplices + conspirators]:
 (a) he is a victim of that offense [statutory rape, parent who pays
kidnapping ransom]; or
 (b) the offense is so defined that his conduct is inevitably incident to its
commission [woman getting a criminal abortion, drug purchaser]; or
 (c) he terminates his complicity prior to the commission of the offense; or
gives timely warning to law enforcement; or otherwise makes effort to
prevent the commission of the offense.

Attempts

 Only liable for an attempt means the bad result is missing.

 Attempt by omission is a form of attempt liability (whole time she is not doing
something, she is actually doing all she needs to do to complete the offense)
 But if ∆ commits the target offense, can’t be convicted of both it and the attempt
  Punishment generally a reduced factor of the punishment for the completed crime.
 Requires mens rea of purpose + actus reus

Rationale for Attempt Liability

 Deterrence:
o Provide incentive to prevent commission of crime if attempt liability is less
o doubtful that threat of punishment for an attempt adds to net deterrence
o Those who attempt + fail should still be punished because they are dangerous
 Retributivism:
o There’s a difference in blameworthiness in producing a result + not
o Counterargument: punishment should be proportionate to offender’s
blameworthiness, not good or back luck.

Mens Rea of Attempts

 Purpose required for attempt + accomplice liability: even if underlying crime does not
 Common Law: 2 “intents” needed: 1) intent to commit acts that constitute A/R (pull
trigger); 2) perform such acts w/ specific intention of committing the target crime (kill X)
o Attempt liability can require higher mens rea than required for target offense
 Purpose/knowledge distinction is critical
 Hypo: put bomb on plane: no purpose to kill passengers (trying to put competing
plane company out of biz) but have knowledge that passenger deaths could result.
o If plane crashes: convicted of murder cuz homicide statute requires
knowledge/purpose/extreme recklessness.
o If plane no crash: no attempted murder because although they might have
foreseen/known about the risk, did not have purpose to cause death.
 Exception: make knowledge look like purpose (means/by-products)
 MPC 5.01 (1)(b) fix: Required mens rea satisfied if ∆ acts “with
purpose of causing or with the belief that his conduct will cause” the
prohibited result.
 Rationale for Purpose:
o Why no convict for attempted involuntary manslaughter or attempted F-M?
 1) can you intentionally attempt to do something unintentional?
 2) Can’t answer the question: Which is the felony you attempted?
 Many jurisdictions recognize offense of attempted voluntary
manslaughter (∆, under extreme provocation, shoots at a
provoker, intending to kill him but misses)
 Ex: Most states reject concept of attempted F-M: ∆s fire at C as flee
from bank holdup. C wounded but survives. Evidence shows ∆s
intended to frighten but did not intend to kill him. No attempted F-M.
MPC: if you know w/ substantial certainty that the outcome you intend will result but it does not
in fact result = still an attempt (same as complicity—want to hold liable knowing/purpose).
 Common law: retains “purpose” requirement for accomplice + attempt liability (even
when lesser mens rea would suffice for conviction of the completed offense Smallwood).
 Jones v. State: ∆ shot at a house full of people. Convicted of murder of person he killed
(knew of high probability that death could result) but acquitted of attempted murder of
those he wounded (no intent to kill).
 Smallwood v. State
Need intent for attempted murder conviction. Find intent through circumstantial or
direct evidence (∆’s words/acts demonstrating intent)
Facts: charged w/ intent to murder rape victims. ∆, despite having knowledge that he was HIV
positive and aware of need to practice safe sex, didn’t use a condom in his attacks (reckless).
 Intent can be inferred from circumstantial evidence like ∆’s acts/conduct/words
o E.g., firing deadly weapon at vital body part where risk of killing so high
reasonable to assume ∆ intended victim to die as foreseeable cause of his acts.
o Death by AIDS not a sufficiently probable result of ∆’s conduct to support an
inference that he intended to kill his victims: just exposed victims of risk
 Different where ∆s made explicit statements demonstrating intent
 ∆ lied about HIV status, refused requests to wear condoms
 Said “If I had HIV, I would spread the virus to others.”
 ∆ jabbed used syringe into victim’s arm, “I’ll give you AIDS.”
Attendant Circumstances
Regina v. Khan. ∆ charged w/ attempted rape
Judge: “The intent of ∆ is the same in rape and in attempted rape and mens rea is identical: an
intention to have sex + a knowledge of or recklessness as to the woman’s absence of consent.”

Commonwealth v. Dunne. ∆ convicted of attempted statutory rape.

In a prosecution for statutory rape + for attempted statutory rape, reasonable belief that victim
was of age irrelevant.

Commentators: should be convicted of criminal attempt if reckless w/ regard to attendant circs

(knew there was a substantial risk that the girl was underage). Others: SL for offense + attempt
MPC Commentary: MPC meant to reach same conclusion as these cases.
 ∆ must have a purpose to have sex in order to be charged w/ attempt + a substantial step
 As to age of victim, sufficient for attempt liability if he acts with the kind of culpability
otherwise required for the commission of the crime (here, none required).

Actus Reus of Attempt

Common Law: conduct must be more than mere lawful preparation

A/R: Distinguishing Mere Preparations from Attempts: Liable Only for Attempts
 An overt act + firm purpose (very few jurisdictions require this little)

 Unequivocal Act Test (res ipsa locquitor): ∆’s conduct alone demonstrates unequivocally
that formed intent + would commit crime except for intervention of another actor/factor
o Test: does conduct show intent to make a bomb or stock his lab?
o People v. Miller. ∆ was carrying a gun and walked straight at Jeans + constable. ∆
loaded his gun but did not lift it. No attempt, acts were equivocal.
o Criticism: some cases, all acts short of commission of a crime look ambiguous.
even lighting match near haystack (could light your pipe)—but practically last act

 Substantial Step Test. ∆ has taken a substantial step toward commission of crime
o Earlier than dangerously proximate last act
o Can look at all the evidence—diary, statements to others
 o Omissions: perhaps requires doing nothing for sufficiently long enough to come
substantially close to completing the offense

 Dangerous Proximity Test: ∆s acts dangerously close to completion of the offense.

o Criticism: Makes law enforcement impractical. Requires police to wait until later.
o Rationale: affords ∆ ample opportunity to change her mind.

People v. Rizzo
To be an attempt, act must be dangerously proximate to success (Holmes)

Facts: ∆s drove around town looking for the guy they intended to rob (Rao)—hadn’t found
him. Were followed by cops and arrested before they could rob anyone (Rao wasn’t even at
the building where the cops arrested ∆). Charged w/ attempt to rob.
 To be an attempt, an act must be so near its accomplishment that in all reasonable
probability the crime itself would have been committed, but for timely interference.
 Roa was not in ∆’s presence and had not been found.

 Many jurisdictions continue to apply Rizzo, swayed by “in presence of victim” test:
o Bell. Undercover cop said she’d let ∆ have sex w/ her kid. Attempted rape
conviction reversed: had yet to see kid, didn’t know her location, not yet paid

 Last Act Test: ∆ has engaged in the last act needed before the result (no pull trigger)
o Nothing in abandonment defense says that its not available at a very late point

MPC Diverges: focuses on what actor has already done vs. what remains to be done (CL).

MPC 5.01. Criminal Attempt

(1) A person is guilty of an attempt to commit a crime if, acting w/ kind of culpability
otherwise required for commission of crime, he:
o [this means that the purpose or belief requirements below don’t encompass
attendant circs. For those, it is sufficient that the actor possessed the degree of
culpability required to commit the target offense. If ∆ would be guilty of stat. rape
w/ proof that he was reckless re: girl’s age, may be convicted of attempt. stat. rape
if reckless—or SL if SL]:

(1)(a) purposely engages in conduct which would constitute the crime if the attendant
circumstances were as he believed them to be; or [complete attempt]

(1)(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 [last act/dangerous proximity] [complete attempt]; and

(1)(c) purposely does or omits to do anything which, under the circumstances as he believes
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. [incomplete attempt]

(2) Conduct Which May Be Held Substantial Under (1)(c):

 Conduct shall not be held to constitute a substantial step under (1)(c) unless it is strongly
corroborative of [makes more certain] the actor’s criminal purpose [unequivocal act]. The
following, if strongly corroborative of the actor’s criminal purpose, shall not be held
insufficient as a matter of law [note: acts are proof enough, don’t look to mental evidence].
 lying in wait, searching for, or following the contemplated victim
 enticing/seeking to entice the contemplated victim to the contemplated location for crime
 surveying the place contemplated for the commission of the crime
 unlawfully entering a structure/vehicle/enclosure that is contemplated crime location
 possessing materials to be used in the commission of the crime
 possession/collection/fabrication of materials to be used at/near contemplated location
 soliciting an innocent agent to engage in conduct constituting an element of the crime

(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 which would establish his complicity under
2.06 if the crime were committed by such a person, is guilty of an attempt to commit a crime,
although the crime is not committed or attempted by such person [attempted accomplice liability
if accomplice ineffective; if principal attempted; and if principal did not get beyond mere prep to
himself be guilty of an attempt—where accomplice guilty of attempted robbery, principal not].

Katz Commentary on the MPC:

 MPC doesn’t want to punish mere overt acts (or anything resembling punishing thoughts)
 Act itself must be strongly corroborative of his intent (less strict than unequivocal act)
 Only looks at acts, not statements (unlike traditional/CL substantial step test)
 MPC will treat as an attempt where you do everything you could have done but the
attendant circs didn’t work out for you to do what you set out to do.

Complication in Attempts: where ∆ persuades C to commit a crime.

State v. Davis (solicitation case)

Facts: ∆ and Wife Lourie planned to kill her husband in order to collect the insurance and live
together. ∆ sought friend’s help, friend told cop who posed as the person who’d kill husband.
∆ paid cop $. They met several times, arranged a plan for cop to kill husband. At appointed
hour, cop went to Lourie home but then arrested ∆. Ct. found not guilty.
 “mere solicitation is not an overt act constituting an element of the crime of attempt.
 Ct. seems to say: engaging cop can’t be an attempt. Cop had no intent to murder.

United States v. Church (solicitation case)

Facts: ∆ began talking about finding a “hit man” to kill his wife. His colleagues reported him.
Undercover cop posed as a hit man. ∆ gave cop $, maps, photos of wife, approved gun,
expressed preference about where she should be shot. ∆ argues mere preparation.
 ∆’s acts a substantial step (hiring, detailed planning, payment); more than preparation.
 Nothing else ∆ could have done short of committing the act himself.
 Ct. says maybe Davis should have gone the other way.
o Affirmed: guilty of attempted premeditated murder.
Despite meeting all tests to establish attempt (not mere prep), Davis-type courts say: when you
use someone else, you’re only derivatively liable + if they don’t do it (changed mind) or can’t do
it (are police officers), not really aiding (+ can’t be an attempt as accomplice or conspirator).
MPC 5.01(3): DIVERGES
 MPC: If you’d be an accomplice if the crime were committed by the principal, you’re
guilty of an attempt to commit the crime, even if it isn’t committed or attempted.

 Solicitation as an Attempt: courts split re: whether solicitation constitutes an attempt.

o Church-like courts say it is if it represents a “substantial step”
o Others: can’t be guilty of attempt cuz not his purpose to commit it personally.
 Solicitation as an Independent Crime: # of states have general solicitation statutes,
usually patterned after MPC 5.02.
o Definition of Solicitation: with the purpose of promoting or facilitating its
commission, he commands, encourages, or requests another person to engage
in conduct which would constitute such crime, or an attempt to commit it, or
which would establish his complicity in its commission or attempted
commission.
o Uncommunicated Solicitation. Immaterial that actor fails to communicate w/
person he solicits if his conduct was designed to effect communication.
o Renunciation. Affirmative defense if, after soliciting another person to
commit a crime, persuaded him not to do so or otherwise prevent commission
of the crime, under circs manifesting a complete and voluntary renunciation

Abandonment Defense
 Note: applies only to attempts, not completed offenses.
o No such thing as a give-back defense (steal $, try to give it back another day)
 Timing: You can abandon in period after an attempt has been established (under
whichever test we use to show that beyond mere prep) but before completing the crime.
 Accomplices + conspirators must communicate withdrawal to the principal or co-
conspirators, and try to neutralize effect of prior assistance (regain possession of gun
offered; if only offer encouragement, communicate objection to crime)
 Requires voluntary + complete renunciation of criminal purpose before commission.
 Cases go either way, allowing defense or not: ∆ held up a gas station attendant. Attendant
produced only $50. ∆ left, saying, “I was just kidding, forget it ever happened.”
 People v. McNeal. ∆ forced girl to his house at knife point w/ intent to rape her. She pled
w/ him to let her go, ∆ released her, saying he was sorry. Ct. affirmed conviction.
Because of victim’s unexpected resistance, ∆’s abandonment was not voluntary.
o Ross. Similar facts, reversed conviction. “No one prevented ∆ from committing it.
Victim successfully persuaded him, of his own free will, to abandon his attempt.”
 Some jurisdictions bar the defense when the ∆ has already caused significant harm,
limiting defense to incomplete attempts
 Retributivists: backing off from crime shows repentance + diminishes blameworthiness.
o Counter: doesn’t wipe slate clean for acts already done up to that point
 Utilitarians: get marginal deterrence at every step if can ∆s can escape liability
o Counter: incentivizes people to take their crimes to pt. just before commission

MPC 5.01(4). Renunciation of Criminal Purpose. [Only get here if established an attempt]
  it is an affirmative defense that he abandoned his effort to commit the crime or prevented
its commission, under circs manifesting a complete + voluntary renunciation
o ∆’s defense doesn’t affect liability of accomplice who didn’t abandon or prevent
 Renunciation is not voluntary if motivated by circs not present or apparent at start of
actor’s course of conduct, which increase probability of detection or apprehension or
which make accomplishment of criminal more difficult [e.g. desists cuz victim resists]
 Renunciation is not complete if motivated by a decision to postpone conduct until a more
advantageous time or to transfer criminal effort to another but similar objective or victim.
o Unlike CL, MPC does not preclude a defense where the actor has already
caused significant harm, so not limited to just incomplete attempts
o Can abandon until just before attempt becomes the completed target offense

Other Defenses to Attempt Liability: Where ∆ Mistaken About His Prospect for Success
These are inculpatory mistakes: where hasn’t caused harm but mistakenly thinks she can/has.
About punishing the guilty mind.

Legal Impossibility: Barber (Doc who pulled plug), Mr. Law: A Defense
 When an actor believes he is attempting acts that, if completed, would constitute an
offense but the offense doesn’t legally exist.
 Rationale: This is a mistake of law of a different sort—cuz objectively doing something
that isn’t wrong. Innocent conduct he’s engaged in he thinks is criminal.
o Your legal knowledge irrelevant to conviction. Won’t get you on/off hook.
 Mr. Law. It’s October. Mr. Law thinks he is violating a statute which forbids hunting in
October. It doesn’t—forbids hunting in September. Not liable under common law.
 Other example: import restrictions: what exactly the import statute covers
 Hypo: Doc thought unplugging life support was illegal. Law says that pulling the plug is
not a crime because it is an omission (no duty to undertake heroic efforts). So although
Doc intended to do something he thought was illegal, he didn’t do something illegal cuz
unplugging wasn’t a crime. Not guilty of murder but what of attempted murder?
o Jaffe Ct would say no.
o MPC: No. Necessary that the result intended by the actor constitute a crime if the
attendant circs were as he believed them to be. Don’t hold people liable for crimes
that are only crimes in their imagination.

Factual Impossibility: Berrigan, L. Eldon, Mr. Fact: Not a Defense

 Where an actor believes he’s attempting something that if completed would be criminal
but crime can’t be completed due to certain factual circumstances
 Test for factual vs. legal: could ∆ realize his mistake by referencing a law book? No law
book would discuss whether someone could rob by reaching into an empty pocket
 No defense for factual impossibility, e.g. for unloaded gun, ∆ impotent, empty pocket
 HIV by spitting: ∆ spat at and bit victim, saying, “die from my HIV!”
o Though medically impossible to transmit HIV by spitting/biting, ∆ guilty or
attempted murder so long as he believed it was possible & intended to kill him.
 Mr. Fact: It’s October. He thinks it’s September and thinks he is violating law (which
prohibits hunting in September). Guilty under MPC.
 L. Eldon: facts worked out in her favor but MPC would hold her liable.

U.S. v. Berrigan
 Father Berrigan convicted of an attempt to violate a statute making it criminal to take
anything in/out of prison w/out the knowledge + consent of the prison warden.
 ∆ smuggled letters in/out through a courier, believing that warden had no idea.
Warden did + had agreed to let courier pretend cooperation. Conviction reversed.
 Katz: thought he was committing a crime but facts weren’t right. Guilty under MPC.
 Lady Eldon
Facts: ∆ thought she was smuggling expensive French lace into the country when she was
really just bringing in cheap English lace not subject to duty.
 One view: yes, guilty of an attempt because she intended to smuggle French lace.
 Keedy view: can’t intend to smuggle something that isn’t smugglable (like Jaffe +
Berrigan). What people intend to do is determined by what they in fact do rather than
by what they thought they were doing.
o Criticism: rests on the premise that what a person intends to do is what he
actually does, even if that was the furthest thing from their mind.

Inherent/Pathetic Impossibility: Voodoo, Oviedo: A Defense

 Actor’s pathetically believe that their conduct is criminal but belief is unrealistic.
 CL Tests: 1) would impossibility be clearly evident to reasonable person? 2) Looking at
it in the abstract, more than a 0% chance of succeeding? Yes? Not inherently impossible
 MPC. Test. Mitigation. If the particular conduct charged to constitute a criminal attempt,
solicitation or conspiracy is so inherently unlikely to result or culminate in the
commission of a crime that neither such conduct nor the actor presents a public danger,
Court may impose a lower sentence or dismiss prosecution.
 Try to kill someone by putting a hex on them. Try to sink a battleship w/ a pop-gun.
 Oviedo: make it look sufficiently remote/pathetic to benefit from this defense.

U.S. v. Oviedo
Since conduct not criminal, difficult to find intent to do something criminal.
∆ sold sugar to undercover cop, saying it was heroin. Guilty of attempted sale of heroin? No.
∆ says he knew substance was not heroine, was just trying to rip off his “customer.”

Intent Impossibility: Jaffee, Dlugash (∆ shoots a corpse): Not a Defense

 Actor believes he might be doing something illegal but actual act is not illegal because ∆
made a mistake about the legal status of the attendant circumstance)
o offers bribe to a non-juror, shoots at a tree stump thinking it’s human, send
pornography to adult thinking she a minor, think victim alive but actually dead
 Katz test: ∆ has awareness but not specific purpose of committing the crime
 Jaffee wasn’t intentionally buying stolen goods, he was intentionally buying cheap goods
which he hoped weren’t stolen (though he thought they might be):
o MPC would say if you believe it, it’s like intending it.
 Dlugash wanted to look like a confederate to the killer, would be happy if corpse was
already dead, no “intent” to kill.
 Most courts would hold these guys not guilty on special construction of “intent”—
weren’t purposeful about buying stolen goods or killing. What people intend to do is
determined by what they in fact do. Can’t intend to smuggle something unsmuggulable.
 MPC diverges: would convict both
o Law Review: What Jaffe intended to do was a crime. Only through a perverse use
of intent can we say that Jaffee intended to receive honestly obtained lace.
 People v. Jaffe
If all that ∆ intends to do would, if done, not be criminal, can’t be criminal to attempt it.

Facts: ∆ knew cloth had been stolen from its owners. Statute prohibited buying or receiving
stolen property knowing it to have been stolen. But by the time ∆ attempted to purchase it, the
cloth had been restored to owners (no longer stolen). ∆ convicted of an attempt. Reversed.
 Distinction between pickpocket cases: not about possibility/impossibility but:
o in pickpocket cases the act which the ∆ had in mind (to steal something) would
have been criminal if carried out.
o Here, act that the ∆ had in mind, if carried out (paid), would not have been
criminal. Couldn’t knowingly buy stolen property because it wasn’t stolen.

People v. Dlugash
Facts: Dlugash shot victim after he’d already been shot by Bush. Jury found ∆ guilty of
murder, allowing inference that they thought ∆ believed victim was alive. But prosecution
failed to prove that victim was still alive at time of Dlugash’s shooting, can’t be murder.
 Ct: shooting a corpse not murder. But it is attempted murder if ∆ believed victim alive.

Complications: special exceptions that get you off hook in terms of mistake of law so maybe
symmetrically they should get you on hook in terms of attempt law.
 Collateral Law Exception: David Smith removes pics from wall—aware of law of
fixtures. Thinks he is taking someone’s property. He isn’t because law allows you to take
pictures—picture isn’t a fixture.
o Prosecuting him for attempt to take another’s property?
o MPC: Yes. Would be a crime if things were as he believed them to be.

 Express Law/Statutory Exception: Cheek: if no pay all taxes owed. Can’t attempt to do
something wrong if it isn’t wrong. Vs. he is attempting to willfully evade.

 Reliance Exception: Lower Ct. says it illegal to demonstrate. Albertini does it, thinking
SCOTUS will reverse (doesn’t). Can’t be convicted of illegally demonstrating. Attempt?

 Lambert Exception. Think there’s a registration req’t (there isn’t) + you willfully evade.

Conspiracy
Conspiracy as an Expansion of Attempt Liability

Two Aspects:
 CL Definition: an express or implied agreement between 2 or more people to commit a
crime, series of crimes, or to accomplish a legal act by unlawful means
o Punishable whether/not agreed-upon offense ever occurs
o Punishable from the moment an agreement is made.
 CL: Unlike attempt, crime of conspiracy does not “merge” into completed offense
o Conspiracy punishable separately + in addition to completed offense
 o MPC Diverges: can’t punished for both conspiracy + object of conspiracy or its
attempt (as principal/accomplice—like if inevitably incident) unless prosecution
proves agreement involved additional offenses not yet committed or attempted
 Punishment: Punishes preparatory activity + special danger posed by group criminal
activity. Three approaches for grading:
o As generic offense w/out regard to sentence for object crime
o Most states: punishment at a term < sentence provided for object crime
o MPC 5.05(1): same as that authorized for object crime, except for most serious
felonies (same approach MPC uses in the case of attempts)

Actus Reus of Conspiracy: the agreement itself

 U.S. v. James: Express agreement to violate a law does not need to be proved.
o Circumstantial/inferential evidence enough: planning a meeting, making a
proposal. Can infer agreement if executing party does things consistently w/ the
previously choreographed scheme
o Black letter: participants in conspiracy need not know each other or of all the
phases of conspiracy; all that’s required is that each know of its essential nature +
that it requires an organization bigger than just his participation for its success.

Interstate Circuit v. United States

Conspiracy may exist if there is no communication and no express agreement, provided
that there is a tacit (implied or understood) agreement reached w/out communication.

 Interstate wrote to each distributor + asked that distributor agree to not allow its
movies to be shown in theaters charging less than 25 cents. Each independently agreed
 Distributors knew that proposals were being considered by the others.
 Distributors had shared goal of increased profits + that cooperation essential to the
success of the plan + that plan, if carried out, was illegal

If explicitly entered into an agreement  definitely illegal. Instead, say this is what we want
to do but can’t do it if others don’t also . . . Tentative understanding. Enough for agreement.

 Conspiracy v. Parallel Action: 9th Cir: common gang members engaging in parallel action
(insulting their rivals, drawing their weapons) is not proof of a conspiratorial agreement.
o Need some prearrangement.
o Govt: gang members have a “basic agreement” to back one another up which
requires no advance planning or coordination.
 Court. Allowing conviction on such a basis smacks of guilt by association.

 Interstate. Where no crime has been committed and no overt act yet but people have
agreed to commit a crime. Should be a type of attempt liability.
o MPC adopts this view. Kind of a group attempt.

Overt Act Requirement

 At common law + under statutory formulations: conduct can be punished as a conspiracy
at points much farther back than in preparatory stages than for attempt liability
o Some jurisdictions: agreement alone is sufficient, no overt act needed
  Mulcahy v. Queen. Enlisting men to join rebellion = agreement
o Other jurisdictions: overt act must be proved, but act may fall well short of the
kind of conduct sufficient to constitute an attempt + may be equivocal
 U.S. v. Bertling. Same telephone conversation established both agreement
+ the act. In 1st part of convo, brothers discussed need to murder a witness.
In 2nd part, discussed how to find the witness
 Maine requires a substantial step strongly corroborative of the firmness of
actor’s intent to complete crime (speech not enough).
 Overt act requirement often dispensed w/ in case of most serious offenses
 MPC Commentary: Act of agreeing, like the act of soliciting, is concrete + unambiguous.
No issues as in attempts where equivocal behavior may be misinterpreted as preparation.
o If agreement was to help another commit a crime—liable as a conspirator even if
crime never consummated.

Common Law Mens Rea: intent to agree + intend that conspiratorial objective be attained
MPC 5.03:
(1) A person is guilty of conspiracy w/ another to commit a crime if with the purpose of
promoting or facilitating its commission he [even if underlying offense no require purpose]:
a. agrees with such other that they will commit a crime, attempt to commit an offense,
solicit another to commit an offense; or
b. agrees to aid such other in the planning or commission of a crime or of an attempt or
solicitation to commit such crime.
(2) Scope of Conspiratorial Relationship. If a person guilty of conspiracy knows that a person w/
whom he conspires to commit a crime has conspired with another(s) to commit the same
crime, he is guilty of conspiring with such other person(s), whether or not he knows their
identity, to commit such crime.
(3) Conspiracy with Multiple Criminal Objectives. If a person conspires to commit a number of
crimes, he is guilty of only one conspiracy so long as such multiple crimes are the object
of the same agreement or continuous conspiratorial relationship.
(5) Overt Act. No person may be convicted of conspiracy to commit a crime, other than a felony
of the first or second degree, unless an overt act in pursuance of such conspiracy is
proved to have been done by him or by a person with whom he conspired.
(6) Renunciation of Criminal Purpose. It is an affirmative defense that the actor, after conspiring
to commit a crime, thwarted the success of the conspiracy, under circumstances
manifesting a complete + voluntary renunciation of his criminal purpose.

*MPC leaves it to courts to determine what culpability, if any, regarding an attendant

circumstance of a substantive offense is required to convict for offense of conspiracy.

*No defense of impossibility—factual or legal

*Common Law: can’t conspire w/ someone who doesn’t have purpose to commit crime (cop)
*MPC diverges: does not define conspiracy as between 2+ people but focuses on culpability of
the actor whose liability is in issue: it is no defense that the person w/ whom ∆ conspired hasn’t
been or can’t be convicted, or is acquitted, or feigned agreement, or is insane

Conspiracy as an Expansion of Complicity Liability

 Actual/attempted assistance not req’d for conspiracy liability, as in accomplice liability.
 Agreement is not req’d for accomplice liability (bank customer helps robber in moment)
  Can be a conspirator w/out being an accomplice and vice versa.

Pinkerton v. United States

A co-conspirator may be held liable for acts of fellow conspirators committed in
furtherance of criminal enterprise, whether or not he assisted in the planning or
commission of those particular criminal acts or even agreed to them, so long as they
were 1) committed in furtherance of the conspiracy; and 2) a foreseeable consequence of
the conspiracy. (no need intent w/ respect to them)

Facts: Imprisoned brother Daniel convicted for tax violations committed by brother Walter
because two of them previously entered into a conspiracy to violate tax code; Daniel did
nothing to effectuate offenses while in prison + unaware of them. Liable.
 Evidence that Walter’s offenses were in furtherance of the brothers’ conspiracy.
 Conspiracy was continuous + no evidence that Daniel affirmatively withdrew
Dissent: Result is vicarious criminal liability.

Strange: liability of a co-conspirator under standard of reasonable foreseeability broader than that
of an accomplice, where ∆ must actually intend his action to further principal’s criminal action

State v. Bridges
A co-conspirator may be liable for the commission of the substantive crimes that are not
w/in the scope of the conspiracy if they are reasonably foreseeable as the necessary or
natural consequences of the conspiracy.

Facts: ∆ recruited A + B to accompany him back to a party where he expected a

confrontation. The three stopped for A + B to pick up guns to be used to hold people back
while ∆ fought it out w/ his enemy. At party, someone hit A. A + B began firing. Onlooker
fatally wounded. ∆ convicted of conspiracy to commit aggravated assault + murder.
 The conspiracy did not have as its objective the intentional killing of another. But the
conspiratorial plan contemplated bringing loaded guns to keep hostile pargygoers back
from beating up ∆, and it was foreseeable that the weapon might be fired.
Dissent: Majority assumes that ∆ had no intent that the victim be killed. If so, he couldn’t
have been convicted of attempted murder or as principal or as an accomplice to murder.

MPC Rejects Pinkerton: Pinkerton almost a sort of vicarious liability.

imposes accomplice liability on conspirators for substantive crimes of their co-conspirators only
when the strict conditions for accomplice liability are met: only liable for target offenses it aided.
 One prostitute shouldn’t be liable for acts of another prostitute unless they were
accomplices to them. Pinkerton: YES if viewed as co-conspirators to the agreement +
acts of other prostitutes reasonably foreseeable + in furtherance of the broad conspiracy.

Liability of a new conspirator for prior acts of co-conspirators.

Pinkerton liability not retroactive. ∆ not liable for offenses committed by co-conspirators prior to
his joining conspiracy, even if those acts committed in furtherance of conspiracy.

Katz Hypo: ∆ wants to get wife’s whereabouts from her current boyfriend X. Gets 2 thugs to
confront X. They end up killing him. ∆ liable for the intentional killing perpetrated by two thugs?
  As an accomplice? No because his intent wasn’t to have new boyfriend be killed.
 As a principal? No because there is a voluntary intervening act.
 Under conspiracy? Pinkerton says yes because of foreseeability/in furtherance.
o Waters down complicity doctrine w/ respect to purpose (because holds you liable
for foreseeable things flowing out of carrying out of purposeful agreement).
o Makes anyone connected to a network of crime liable for anything anyone else
does who is also connected to the enterprise.
 Truck driver held responsible for murder committed by distributor.
 Rationale: If Michael Jordan scores, the whole team wins.

Defenses to Criminal Liability

* Note that all affirmative defense apply to principals, accomplices, conspirators, attempt

Justification: we approve. Defense of force (yourself, someone else, property), necessity

Excuse: disapprove of what ∆ did but think he should be exonerated: duress, insanity.

Defensive Force to Protect People

MPC 3.04 Self-Defense

1. Use of force on another person justifiable when ∆ believes that such force is immediately
necessary for the purpose of protecting himself against the use of unlawful force by the
other person (relaxes common law imminence requirement of common law—
imminence ≠ won’t be able to use force against him later; seconds/not hours)
[might be last chance hostage has to act but he’s not going to be imminently killed.]
(Other divergence from CL: focus on ∆’s subjective belief in the need to use force—
CL required you to stand in the shoes of the party being defended, not your own)

Unlawful force = force/confinement used w/out consent which constitutes an offense or

actionable tort or would constitute an offense except for a defense (no intent, negligence,
mental capacity, duress, youth, immunity) not amounting to privilege to use force. (can’t
use force to resist an arrest being made by a police officer even if unlawful—but doesn’t
prohibit use of force by an arrestee who believes officer intends to use excessive force)

Katz = You are legitimately allowed to defend yourself from someone who is
legitimately allowed to defend himself.
Hard case: are you allowed to assert force against someone who is lawfully trying to
execute you? It is not necessary that force be unlawful for you to resist w/ force.

State v. Norman
Facts: Battered woman after years of abuse from husband + after several days of being subject
to particularly harsh abuse, shoots husband while he’s sleeping.
Rationale: imminence requirement disallows self-defense here.

2. Limitations on Use of Force

a. Use of force not justifiable:
i. To resist an arrest, even though arrest is unlawful; or
 ii. To resist force used by occupier/possessor of property or by another
person on his behalf, where ∆ knows that person using the force is doing
so under a claim of right to protect the property. Limitation no apply if:
1. ∆ is a public officer performing his duties or is a person lawfully
assisting him or is a person making/assisting in a lawful arrest
2. ∆ has been unlawfully dispossessed of the property + is attempting
reentry or recapture
3. ∆ believes such force necessary to protect self from serious bodily
harm
b. The use of deadly force is not justifiable unless the ∆ believes such force is
necessary to protect himself against death, serious bodily harm, kidnapping or sex
compelled by force or threat; nor is it justifiable if:
i. the actor, w/ the purpose of causing death or serious bodily harm,
provoked the use of force against himself in the same encounter [no lose
self-defense if actor starts a nonlethal conflict] [if ∆ commences a deadly
assault on V, he may regain right of self-defense if he breaks off struggle
+ V continues to threaten him—V’s threat a distinct engagement]
[purposeful provocation not justifiable but knowing might be—individual
walking through park w/ $ falling out of his pockets]; or

ii. the actor knows that he can avoid the necessity of using force w/ complete
safety by retreating [can’t walk way I want to walk] or by surrendering
possession of a thing to a person asserting a claim of right to it or by
complying w/ a demand that he abstain from any action which he has no
duty to take [surrender of one’s own property not required when one is
faced w/ a choice of property loss or serious bodily harm—can use deadly
force to protect my $3—weird cuz you’re still protecting your property w/
deadly force. Generally, can’t do that. Difference here is that you have
first been threatened w/ force] except that:
1. actor is not obliged to retreat from his dwelling or place of work,
unless he was the initial aggressor or is assailed in his place of
work by another person whose place of work the actor knows it to
be [but retreat is required if actor was initial aggressor, or if
attacked by co-worker in place of work BUT no retreat required by
a non-aggressor in the home, even if the assailant is a co-dweller—
benefits battering victim]; and
2. a public officer justified in using force in the performance of his
duties or a person assisting him in making an arrest or preventing
an escape is not obliged to desist because of resistance
3. ∆ can confine as protective force only if takes all reasonable measures to terminate the
confinement as soon as he knows he safely can

MPC 3.05 Defense of Others. Ask: is this a person?

(based on intervenor’s subjective (not reasonable person) beliefs)
Use of force justifiable to protect a 3rd person when
a. actor would be justified in using such force to protect himself; and
b. under the circs the actors believes them to be, person whom he seeks to protect would be
justified in using such protective force; and
c. actor believes his intervention necessary to protect such other person.
BUT: limited retreat requirement
a. when actor would be obliged to retreat, surrender possession of a thing or comply w/ a
demand before using force, not obliged to do so before using force to protect other
person, unless he knows he can thereby secure the complete safety of the other; and
b. when the person whom the actor seeks to protect would be obliged to retreat, surrender
possession of a thing, or comply w/ a demand if he knew that he could obtain complete
safety by doing, the actor is obliged to try to cause him to do so before using force in his
protection only if the actor knows that he can obtain complete safety that way; and
c. neither the actor nor the person whom he seeks to protect is obliged to retreat in the
other’s dwelling or place of work to any greater extent than in his own.

MPC. 3.09(1). Mistake of Law as to Unlawfulness of Force or Legality of Arrest; Reckless or

Negligent Use of Otherwise Justifiable Force; Reckless or Negligent Injury to Innocents
1. Self-defense unavailable when:
a. ∆’s belief in the unlawfulness of the force/conduct against him is wrong [wrongly
think you were entitled to use defense of force to protect property or where you
were not being threatened by serious physical harm]; and
b. his error is due to ignorance or mistake of law

[next two apply to self-defense + defense of others]

2. When ∆ believes that use of force necessary but is reckless or negligent in his belief,
defense unavailable in a prosecution for an offense for which R/N suffice for culpability
[If D kills V because he unreasonably + negligently believes V is about to kill him,
defense of self-protection available if charged w/ P/K/R killing V but not if charged w/
negligent homicide. Or if D consciously disregards a substantial + unjustifiable risk that
V is not an aggressor, ∆’s recklessness would make him guilty of a R offense]
3. Defense unavailable when ∆ recklessly or negligently injures or creates a risk of injury to
innocents in a prosecution for recklessness or negligence towards innocents
[manslaughter of bystander or for offense of reckless endangerment]

State v. Rupp
Facts: Rupp a rat, previous fist-fights w/ Sederberg. Rupp got involved in a convo Sederberg
was having w/ a 3rd party. Sederberg started toward ∆, who shot him. Send ?s to jury:
 ∆ might have had a right to stand his ground w/out taking alternative action
 Was Sederburg justified as a reasonable person in fearing death/injury?
 ∆ might have retreated when Sederburg advanced.

Katz: Can argue that Sederburg’s approach was lawful. Might have been last chance to defend
himself (immediately necessary).

Defense of Property

Common Law: deadly force never permitted to protect property but is justified, in certain circs,
to defend habitation (can use even if ∆ doesn’t reasonably believe his life or that of another
occupant’s is jeopardized—divergence from CL imminence requirement for self-defense)
 If ∆ knows or a reasonable person would believe that X has a legitimate claim of right to
the possession of the habitation, ∆ can’t use force against X
MPC 3.06 (conforms w/ CL): ∆ may use nondeadly force upon another to prevent/terminate
entry or other trespass on land, or to prevent carrying away of personal property if he believes:
1. the other person’s interference w/ the property is unlawful;
2. intrusion affects property in the actor’s possession, or in the possession of someone else
for whom he acts; and
3. nondeadly force is immediately necessary [should request desistance unless ∆ believes
request would be useless, dangerous to himself or another, or would result in substantial
harm to the property before the request can be effectively made]

MPC protection of property defense based on actor’s subjective beliefs. But, as w/ other MPC
justification defenses, if the actor’s relevant beliefs were negligent or reckless, the justification
defense is unavailable to him in a prosecution for an offense based on negligence or recklessness.

MPC. Force to Recapture Property.

∆ may use nondeadly force to re-enter land or recapture personal property if:
1. he believes that he/person for whom he is acting was unlawfully dispossessed of it; and
2. force used is immediately after dispossession or if he believes that other person has no
claim of right to it. In latter situation, reentry of land not permitted unless actor also
believes it would constitute exceptional hardship to delay re-entry until he can obtain a
court order [force not allowed if ∆ believes dispossessor acted on claim of right] [MPC
also prefers original dispossessor to forego use of force and permit recapture or reentry if
the other might have a claim to it]

MPC Use of Deadly Force prohibited except when:

A. Dispossession of a Dwelling
1. intruder seeks to dispossess ∆ of a dwelling
2. intruder has no claim of right to possession of the dwelling; and
3. such force is immediately necessary to prevent dispossession
B. Prevention of Serious Property Crime
1. other person attempting to commit arson, burglary, robbery, theft, or property destruction
2. deadly force is immediately necessary to prevent commission or consummation; and
3. either the other person previously used/threatened to use deadly force against him or
another person in his presence, or the use of nondeadly force would expose him or
another to substantial danger of serious bodily injury.
[If burglar threatens to use deadly force against ∆ or X and seeks to flee w/ fruits of his crime, ∆
may kill F if he believes this is only way to prevent burglar from consummating crime—deadly
force may be used to prevent burglar from capitalizing on his offense]

People v. Ceballos
∆ placed a spring gun in his garage in which he kept valuable property + sometimes slept at
night, after an intruder attempted to unsuccessfully enter. Later, while ∆ was away, two
unarmed teens, after looking in a window to make sure no one was present, entered the garage
in order to steal property. Spring gun fired, struck one teen in face.
Holding: burglary in this case not of a kind to warrant use of deadly force

Mechanical Devices
Common Law: MD may be used where the intrusion is such that the person, were he present,
would be justified in taking the life or inflicting the bodily harm w/ his own hands.
  Using gun in his absence not justified to defend property; yes to protect habitation

Mechanical Devices Under 3.06: prohibits use of a mechanical device to protect property if it is
intended to cause, or is known by the user to create a substantial risk of causing, death or serious
bodily injury. In those circs where deadly force is permitted in defense of property, the actor
must personally commit the lethal acts rather than use a spring gun [can’t even use if warn—can
use nondeadly device if use is 1) reasonable under the circs, as the actor believes them to be, and
2) device is customarily used for such a purpose or reasonable care is taken to make known to
probable intruders the fact that it is used]

*Ceballos court’s view + MPC’s provision on mechanical devices represent the prevailing view

 Hypo. Guy had a cottage in the mountains. Stored valuable wine there. ∆ installs a booby
trap to catch thieves vs putting his wine in a shark tank.
o Not ok to use a deadly device even if you warn.
o But you can make it really perilous to access your stuff.
o Larry Alexander. Strange. If you inflict shark bites on him or put your wine really
high up so you give him a heart attack, you’re still using a deadly device/force.
 Hard cases: is it like a booby trap (liability) or a shark tank (no liability).
Doberman pincher protecting your property—more like Ceballos.

Necessity: typically does not involve an unlawful aggressor

MPC: Justification Generally & Choice of Evils Doctrine

A person’s conduct is justified if:
1. He believes that his conduct is necessary [not imminent, as in CL] to avoid harm to
himself or to another;
a. the harm to be avoided by his conduct is greater than that sought to be avoided by
the law prohibiting his conduct [did you do more harm than good? MPC does
prefer #s, net saving of lives—but in self-defense you can take more lives than
you save. Note: rights prevail over lives in aggressor cases but lives prevail over
rights in bystander/trolley cases]; and
b. neither the Code nor other law defining the offense provides exceptions or
defenses dealing w/ the specific situation involved; and

[Can’t use necessity defense in OR cuz you have another provision to help you
there and you have to comply w/ it. We don’t want you to be able to circumvent
your state’s law by using the necessity defense].

c. no legislative intent to exclude the justification plainly appears

 In calculating balance of evils: what did the ∆ do vs. the outcome of other courses of
action the ∆ did not do. Say: you killed one to prevent the death of two.
 Person doesn’t automatically lose defense because he was at fault in creating necessity.
 But defense is unavailable if the actor is charged w/ a crime of R/N and he acted R/N in
bringing about the emergency or in evaluating the necessity of his conduct. [where ∆
recklessly started a fire, ∆ would be justified in purposely burning V’s property, though
he could be prosecuted for criminal mischief, due to original reckless act]
  All forms of necessity qualify: emergencies created by natural forces, physical harm to
persons or property, and may be employed in homicide prosecutions

[men enter war recruitment effort. Argue the necessity defense. Apply: Is conduct necessary to
avoid harm? Are there legal options? Balance of evils? What do other laws say/intend?]

Dudley v. Stephens
Facts: 3 men + boy forced to survive on boat after ship sank. Ran out of food + water, all
became v. weak. D + S killed boy; D + S + Brooks ate boy to survive. Rescued 4 days later.
 no CL authority supports claim that you may take life of another in order to save yours
o Sometimes duty is to sacrifice your life
o Worry of allowing legal cloak for unbridled passion + atrocious crime
o Parker an innocent or an aggressor who threatened their lives w/ deadly force
o Selection by lot would have been fairer. Whose life takes priority?
o Justified in taking a 2nd life if boat didn’t come? Result is more not less harm

 Why they were out there? Boat not designed for ocean voyage. Did they create necessity?
 Argument #2: self-defense is a well-recognized defense. Could you say it was?
o With delay we become very reluctant. Some people think ok.
 Dudley today. Court treated it as a justification case but overlooked excuses. Situational
duress defense could have helped if allowed (not under MPC or common law).

Trolley Car v. Organ Harvesting: Moral unease in relying on a utilitarian calculus in organ case
even when a net savings of lives is achieved.

Killing knowingly + killing purposely govern war. Can drop bomb but can’t shoot a civilian.

Public Committee Against Torture v. State of Israel.

Torture to save human lives? Can’t establish permanent directives setting out that physical
interrogation may be used under conditions of necessity. Decision doesn’t negate possibility of
case-by-case if criminal charges brought + immediately necessary to save live + no alternative.

Bybee Memo.
 Necessity defense available to interrogators using torture to elicit information
 Weighing choice of evils: great certainty that individual has info needed to prevent an
attack; likelihood attack will occur + can be prevented; amount of damage expected.
 Torture justified if probability of attack low but loss of life extensive.
o Possible innocence not weighed heavily.
 Long run consequences? Legal system? Get only useless info + false leads

Necessity + Perjury. Use a necessity defense to save self from charge that you perjured yourself
in creating an alibi for your friend? No. Systemic effects by granting defense in such cases.
 Juries trust info less, worse accurate fact finding, more wrongful convictions &
acquittals. Can’t protect this innocent cuz we’d hurt all the wrongfully convicted later on

Duress: a defense to a crime committed against an innocent person

MPC 2.09. Duress
 MPC 2.09(1) It is an affirmative defense that the actor engaged in conduct constituting an
offense because he was coerced [compelled by force] to do so by use of, or a threat to
use, unlawful force against his person or person of another, which a person of reasonable
firmness in his situation would have been unable to resist. Defense is unavailable if:
o the actor recklessly placed himself in a situation in which it was probable that he
would be subjected to duress [joined a criminal gang]
 Divergence from 3.02 choice-of-evils defense which is available in
some circs to a person who recklessly causes the emergency.
o he was negligent in placing himself in such a situation, whenever negligence
suffices to establish culpability for the offense charged. [this means that if she
negligently placed herself in such a situation, duress defense is available to her for
all offenses except those for which negligence suffices to establish culpability].
 It is not a defense that a woman acted on the command of her husband, unless she acted
under such coercion as would establish a defense under this Section.

o “in his situation” = same scope as accorded in appraising recklessness +

negligence: size, strength, age, health considered, temperament not
o sliding scale: more serious the threatened harm, the more serious crime excused
o MPC doesn’t recognize defense when an interest other than bodily integrity is
threatened: threats to property or reputation not allowed.
o MPC doesn’t cover natural forces threatening one’s life.
 Mountain road drops off sharply on both sides. Drunks lying in road.
 Felon has a gun to your head. Not justified under lesser-evil
principle but excused under duress if jury found that “a person of
reasonable firmness in situation would have been unable to resist”
 Inoperative brakes. Options: run down drunks or run off road. If
saved his own life, not be excused under duress if jury decided a
person of reasonable firmness would’ve been able to do otherwise.
 MPC does not permit a duress defense for any naturally arising
peril, no matter how severe cuz no one to punish (no coercer)
 Does it make a difference if it is nature putting a gun to your head vs. a
person putting a gun to your head?
 Yes, cuz too many examples where we don’t think people free to
break a law because of pressure from natural forces
 Coercing party responsible for coerced victim’s conduct + may be convicted of offense.

State v. Toscano
Facts: ∆ helped w/ fraudulent insurance claim by providing false medical reports. Owed $ to
brother of architect of conspiracy. Alleged duress (fear for his/wife’s bodily security).
Reasoning/Holding: Duress is a defense to crime other than murder if ∆ engaged in conduct
b/c he was coerced to do so by use of, or threat of use of, unlawful force against him or
another, which a person of reasonable firmness in his situation would’ve been unable to resist.
Toscano + MPC treat imminence of threatened harm as one factor in determining whether
∆’s conduct was that of a person of reasonable firmness. CL treats as absolute prerequisite,
+ only allows defense for threats of death/serious bodily harm to self or family members.
MPC permits duress as an affirmative defense to murder. Common Law did not allow a
duress defense to intentional killing; other codes only allow duress defense to reduce a crime
from murder to manslaughter.

Difference Between Necessity/Choice-of-Evil Doctrine & Duress

Necessity: person must decide which of two evils is greater + makes the right choice (justified)
Duress: coercer’s threats overwhelm actor’s will so she makes the wrong choice, perpetrates a
greater evil (excused)

Insanity: an excuse, a complete defense

 Insane at time he committed crime (excused)

 Wasn’t insane at time of crime but incompetent at time we want to try him (excused)
 Not insane at time of crime, or at trial, incompetent at time we want to execute (excuse)
o Getting his just deserts but doesn’t understand why being punished
o It’s still him.
 All tests for insanity defense require mental disease = mental abnormality significantly
impairing cognitive or volitional capacity

MPC 4.01 Test for Insanity Defense A person is not responsible for criminal conduct if at the
time of such conduct as a result of mental disease he lacks substantial capacity either to
appreciate the criminality (wrongfulness) of his conduct or to conform to the reqt’s of the law.
 Unlike M’Naghten, requisite incapacity need not be total but substantial
 appreciate vs. know: failure to appreciate might mean misapprehension of material circs
(like he wasn’t a lawful occupant + ineligible to use deadly force against an intruder)

Four Other Tests for Determining Insanity at Time Committed Crime

 Insanity is the product of mental disease

o Test: Was there a mental disease + was crime caused by that disease? Difficulties:
 ‘mental disease” too broad. Need to circumscribe. Would depression fit?
 “Mental disease figures in causal story but unclear that it’s a but-for cause
 M’Naghten & Crenshaw would be acquitted

 Inability to appreciate “nature + quality” of one’s actions. M’Naghten

o Test: Person squeezing someone’s throat thinking it’s a lemon.
o Difficulty: redundant to mens rea requirement, no purpose/knowledge.
o Criticism: requires that ∆ wholly lack cognition

 Irresistible impulse/no substantial capacity for self-control

o Lost power to choose between right + wrong
o Difficulty: redundant to voluntary act requirement.
o Criticism: repeat rapists? teens who want to have sex w/ underage girlfriends?

 Inability to tell right from wrong/inability to appreciate criminality of one’s act.

M’Naghten.
o Difficulty: If it is about legality of act, we don’t excuse mistake of law.
 o Criticism: requires that ∆ wholly lack cognition

Previous tests bad, led juries in Green & Yates to convict.

Green: homeless kid who killed a police officer, w/ nothing to his name but shiny shoes; long
history of psychiatric problems, violence. Experts testified that he was insane @ time of offense.
Police officers who had contact w/ him around that time testified that he appeared “normal.”

Yates: drowned her five kids in bathtub to save them from Satan. Depressed, overwhelmed, kept
getting pregnant, in/out of psychiatric unit, suicidal, voices/visions, catatonic. All experts agreed
she insane at time of offense.

Better test: Evaluate the ∆’s competency. In your judgment, is the ∆ stark raving mad?

Applied: 7 yr-old intentionally kills; M/R/voluntary/prox. cause all present to convict for murder
 He is not a fully competent adult human being, but more like an animal or an object.
 Not competent enough to be held responsible for what he does.
 The insane might satisfy voluntary act/MR reqt’s, tell right from wrong just like 7 yr-old
 BUT: the insane exhibit same deficiencies that minors do. Too incompetent to be liable.

*Arguing duress, a ∆ shows herself to be no different than the rest of us, the basis for insanity is
that she shows herself to be very different from the rest of us

M’Naghten
Facts: ∆ mistook secretary for prime minister + killed him. Suffered from delusions + acute
insanity: “tories in my city harass + persecute me wherever I go; they wish to murder me.”
Reasoning/Holding: Test for insanity is: ∆ had a defect of reason, due to mental disease, so as
not to know the nature + quality of the acts he was doing; or, if he did know it, that he did not
know that what he was doing was wrong.

State v. Crenshaw
Facts: ∆ beat wife unconscious + decapitated her because he thought she had an affair. Very
organized behavior to clean up crime + dump body. Voluntarily confessed. Said: according to
Moscovite religion it’s improper not to kill your wife if she committed adultery.
 Employed M’Naghten test.
 ∆: Trial Ct. erred in defining “right + wrong” as legal rather than moral right + wrong
Reasoning/Holding: Here, legal wrong is synonymous w/ moral wrong.
 It is society’s morals, not the individual’s morals, that are the standard for judging
moral wrong under M’Naghten.
 ∆ knew his actions were wrong according to society’s as well as legal standards.
 Narrow exception to societal standard of moral wrong: mentally disordered person
believes she is acting on God’s direct command is deemed legally insane.
 Not here; just thought it was his duty as member of his faith. Guilty.

Knowledge of the law, in some jurisdictions, defeats any M’Naghten claim.

Contra a number of decisions that hold that “wrong” means “morally wrong.”