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Law 120: Criminal Law

Professor Greenberg

Criminal Law Outline

Justification of Punishment

[1] Retributive
o Punishment is justified because the perpetrator is morally culpable
Negative: It is not morally permissible to punish the innocent
Permissive: It is morally permissible to punish the guilty
Positive: The guilty must be punished as much as they deserve
o Problems: Wouldnt allow punishment of crimes which arent morally blameworthy
o Theorists: Moore (Murray, 37), Kant, Stephen (Yoon, 2)

[2] Utilitarian
o Punishment is justified when it is likely to produce a better consequence for society than not punishing
o Types of good consequences: rehabilitation, incapacitation, deterrence (specific deter that criminal from breaking
the law; general deter the public form breaking the law)

[3] Mixed Theory

o Shouldnt punish unless good consequences will result AND the person is morally blameworthy
o Ex. Regina v. Dudley and Stephens (Levy)

[1] Voluntary Acts

o Voluntary act doesnt include knowing the result (ex. flipping on switch that sets off bomb)
o Rationale for Vol Act requirement: dont punish for thoughts alone
Utilitarian: No purpose served by punishing involuntary act
Retribution: Involuntary actor committed no wrong cant deter or rehabilitate
o Involuntary Acts: reflexive actions, spasms, seizures, bodily movements while unconscious or asleep
o MPC: Involuntary = Reflex, convulsion, bodily movement during sleep or unconsciousness, hypnosis, bodily
movement that isnt the product of the effort/determination of the actor
o Hypnotism Probably seen as voluntary; MPC says not voluntary
o Habitual Action Not voluntary

[2] Omissions
o Can only be liable for omission if you had a duty to act. Sources of duty:
(a) Statute, (b) Contractual Relationship, (c) Status Relationship [parent, guardian, spouse, doctor/patient],
(d) Creation of Risk, (e) Voluntarily Rendering Aid to the Exclusion of Others
Omission has to be voluntary: omission to perform an act of which he is physically capable
2.01(3) Law defining offense provides for it OR duty to act is otherwise imposed by law

Common Law Levels of Culpability

o Intent
Desire (conscious object) to cause social harm OR
Acts with knowledge that the social harm is virtually certain to occur as result of his conduct
Specific Intent: Require an additional purpose beyond acting intentionally motive or object (equivalent
of MPCs purposely or knowingly)
Ex. Burglary have to want to commit felony therein, assault w/ intent to kill
Only get SI w/ statute
SI exists even if its conditional IF had no right to impose the condition (ex. Halloway v. United
States carjacking case, intent to kill was conditional on resistance, convicted see Levy)
o MPC follows this and adds that if condition is one has right to impose, the condition
negates the harm and is not guilty

Actus Reus

Mens Rea

Law 120: Criminal Law

Professor Greenberg

General Intent: As long as there is conduct, intent will be inferred

Knowledge of material fact if aware of fact OR correctly believes it exists
Willful Blindness/Deliberate Ignorance
Deliberate Ignorance and positive knowledge are equally culpable
is guilty:
o Aware of high probability of illegal conduct
o Purposefully contrived to avoid learning of the illegal conduct
See U.S. v. Jewell, Levy
Criminal Negligence: GROSS deviation from a standard of reasonable care
Reasonable Person physical characteristics (ex. blindness) taken into account, s unusual
mental characteristics are not
Actor disregards a substantial and unjustifiable risk of which he was aware
Whereas criminal negligence involves inadvertent risk-taking, recklessness implicates subjective fault (act
was aware of substantial/unjustifiable risk yet consciously disregarded it and proceeded w/ dangerous

Objective Standard determines liability by examining general norms of reasonable behavior

Subjective Standard determines liability by examining the Ds individual characteristics (Ex. Premeditation, deliberation
determined by subjective standard)

MPC Mental States (2.02)


Conscious object to engage in
Aware that conduct is of that

conscious disregard and
sub/unjust risk)

Consciously disregards [a
substantial and unjustifiable
risk that a material element
exists or will result from


Should have been aware [of

substantial and unjustifiable
risk that material element
exists or will result from

Conscious object to cause such a
Aware that it is practically certain
conduct will cause result (aware of
high probability) UNLESS he
actually believes that it does not exist
(ex. asks friend to remove drugs;
turns around, and friend sneaks drugs
back in car)
Material element exists or will result
from conduct

Material element exists or will result

from conduct

Attendant Circumstance
Aware of circumstances or
believes or hopes they exist
Aware of such circumstance

Substantial and unjustifiable risk

that circumstances exist
(given the actors situation, the
actors disregard is a gross
deviation from how law-abiding
person would act)
Reasonable person would have
been aware (same as

2.02(3) When statute is silent regarding matter of culpability, recklessness is minimum that must be proved

Strict Liability Offenses: Prosecution does not have to show mens rea for one or more elements
o Justification: Deterrence, Correcting inefficiencies (dont want people claiming ignorance in a situation where it can
be difficult to claim knowledge)
o Applicable to some Public Welfare Offenses and such things as statutory rape (see Levy outline under Mistake in

Law 120: Criminal Law

Professor Greenberg

Burden of Proof

Burden of proof can be split into:

o Burden of production: Burden of showing that theres some evidence showing what your burden of proof is trying
to establish
o Burden of persuasion: Burden of proving the issue to the jury
A presumption reverses a burden of proof- it is then up to defendant to prove that he didnt do something.
Relevant cases: See Levy outline




MALICE AFORETHOUGHT: A seriously culpable mental state; typically, any one of the following:
[a] Purpose to kill or cause serious bodily injury
[b] Knowledge that your actions will cause serious bodily injury
[c] Recklessness manifesting extreme disregard for human life (Russian Roulette)
Also called depraved or malignant heart
Awareness of risk is necessary (except intoxicated driving)
[d] Felony Murder Rule: Intent to commit any felony which then results in a murder


Malice Aforethought required
Premeditated, Willful, and Deliberate
Willful: Specific intent to kill
Premeditation and Deliberation
o Premeditation: 2 Perspectives
(a) Commonwealth v. Carroll: [Shoots wife after argument] No amount of
time necessary for premeditation to occur doesnt matter if premeditation and
act are w/in brief space or long period
(b) State v. Guthrie: [Towel snap in nose, stabbed in neck] Must be some
period of time between formation of intent and the actual killing
o Factors in determining deliberation/premeditation (taken into account in Anderson [see
Levy notes])
(1) Planning activity (2) Motive (3) Manner of killing


Malice Aforethought required
(1) Intentional killings not premeditated and deliberate (purposely and knowingly)
(2) Intent to inflict grievous bodily harm killings
Intent to cause GBH but death results
(3) Depraved Heart Murder (Extreme Recklessness)
BOTH a high risk of death/GBH AND recklessness (subjective) with respect to that risk
o Ex. Shooting into crowded room, Russian roulette (Commonwealth v. Malone)
o Ex. By Grave omission Parent out of indifference fails to feed child for 2 weeks
o Ex. Egregiously dangerous drunk driving (U.S. v. Fleming)


No malice aforethought
Intentional Homicide Committed in Sudden Heat of Passion as the Result of Adequate
Sudden Heat of Passion: Subjective state of passion at moment of homicide
Legally Adequate Provocation: Objective in CL must fall into 1 of 5 categories
o (1) Injury to a close relative, (2) Extreme assault, (3) Illegal arrest, (4) Sudden discovery
of spouses adultery, (5) Mutual Combat

Law 120: Criminal Law

Professor Greenberg

o NOT adequate: trivial battery, learning of adultery (not witnessing), WORDS

Reasonable Person Standard: How subjective? Reasonable person in abstract or w/ s
particular characteristics? Courts go in different ways (Dressler, 531-532)
Cooling Time: Insufficient (Objective) and Not Actually Cooled (Subjective)
o Reasonable person must not have had sufficient time to cool
o Some courts allow rekindling see page 21 of Murray Outline
CL vs. Modern Approaches: Giouard v. State vs. Maher v. People (See Levy outline)


Criminal Negligence required: Gross deviation from the standard of care that reasonable people would
exercise in the same situation
Can be evaluated by looking at
o Awareness of Risk
o Magnitude of Risk
Higher Probability of Harm
Size of Harm
o Justification of Risk (ex. benefit of operating train at 60 mph vs. 10 mph outweighs risk
of increased deaths)
Commonwealth v. Welansky [ runs nightclub where exits locked/blocked. Convicted of causing death
through wanton/reckless conduct even though he was not @ club at time of fire]
Thus: Negligence + wanton and reckless = high risk of serious harm
Objective or Subjective Standards of Liability?
Objective: Determines liability on basis of general norms or proper/reasonable behavior
Subjective: Determines liability based on individual characteristics of actor taking into account
varieties in intelligence, temperament
State v. Williams [Native Americans baby sick. Didnt know how sick he was and didnt take
him to a doctor in fear of the Welfare Department taking him away. Child died convicted of
involuntary manslaughter] Court uses objective standard even though subjectively, risk may
have been justifiable

[5] Civil Liability

Ordinary negligence required neednt be aware of risk

o [1] Murder
Purposely OR Knowingly OR
Recklessly Under Circumstances Indicating Extreme Indifference to the Value of Human Life OR
Results from one of a list of enumerated felonies: robbery, rape, arson, burglary, kidnapping, felonious
Falls under recklessly under circumstances indicating extreme indifference to human life so if
felony committed in manner does not manifest extreme indifference then felon should not be
convicted of murder
o [2] Manslaughter (no voluntary/involuntary split)
Committed Recklessly OR
Committed under Extreme Emotional Disturbance (EED) for which there is a reasonable explanation or
2 parts to EED Defense
o (1) Subjective: Was under extreme emotional disturbance?
o (2) Objective: Was explanation or excuse reasonable? (but still somewhat subjective b/c
considered from viewpoint of person in actors circumstances as he believed them to be)
EED vs. Heat of Passion
o EED easier to assert does not required provocation (but HOP does)
o Specific provocative act not required to trigger EED defense only need reasonable
excuse (and words CAN provoke in EED)
o No rigid cooling off time in EED: Trauma can cause to brood for a long period

Law 120: Criminal Law

Professor Greenberg

[3] Negligent Homicide

Committed Negligently Gross deviation from the standard of care that a reasonable person would
observe in the actors situation


o Liable for felony AND murder
o 2 rationales: (1) Deter felonies other than murder; (2) encourage felons to use more care in committing felonies
o Any act known to be dangerous to life and likely in itself to cause death, done for the purpose of committing a
felony is murder (Regina v. Serne insurance policy, burns house down)
o Not limited to those deaths which are foreseeable felon held strictly liable for ALL killings committed by him or
his accomplices in the course of a killing
Eggshell-Skull Rule: People v. Stamp (heart attack during robbery) take your victim as you find him
o Misdemeanor-manslaughter rule parallels felony murder rule (see page 13 in Yoon, State v. Powell in Levy)

Limitations of Felony Murder Rule

(1) Causation Requirement: Although can be liable w/out mens rea w.r.t. death, prosc must still
establish that s conduct caused the death under normal causation standard (but for AND
(2) Inherently Dangerous Felony: Only felonies which are in themselves inherently dangerous to human
life can support FM (NOTE: doesnt apply to enumerated felonies)
(a) CA Minority View: Must look at felony in the ABTRACT (not considering specifics of
case) is the felony inherently dangerous to human life?
o But note: CA enumerates commission or attempt to commit: arson, rape, robbery,
burglary, mayhem, kidnapping, train wrecking
o See People v. Phillips (Chiropractor convinces no live-saving surgery Levy)
Greenberg disagrees difference between dangerous conduct and conduct
dangerous to human life
(b) RI Majority View: Must consider the facts and circumstances of case to determine if felony
was inherently dangerous in the manner and circumstances in which it was committed (See People
v. Stewart Levy)
Look at statute as whole or part?
o People v. Henderson: Felony was false imprisonment effected by violence, menace,
fraud, or deceit. Court says have to look at statute as a whole Although menace and
violence may be dangerous, fraud and deceit are not and therefore offense NOT
inherently dangerous
(3) Merger Doctrine: If the felony is NOT independent of the homicide, then the felony merges w/ the
homicide and cannot serve as the basis of an FM conviction
Ex. Manslaughter, assault w/ a deadly weapon, child abuse, and some say burglary (b/c victim
more likely to resist and less likely to escape People v. Wilson, Levy)

Integral Part of Felony Test: Ireland. FM inapplicable to felonies that are an integral part
of and included in fact w/ the homicide
Independent Felonious Purpose Test: Burton Does NOT merge if independent felonious
purpose (ex. felonious taking of property accomplished by force and fear does not b/c taking
property independent purpose from conduct that resulted in death)
Rule has started to unravel b/c merger doctrine takes most dangerous felonies (assault ) out of FM
o Hanson (CA) [discharging firearm at an inhabited building] Limits merger, expands
Rejects integral part test b/c would preclude FM for those felonies most likely
to result in death
Rejects independent purpose test b/c punishes person w/out intent more
severely than person w/ intent
(4) Killing by a Non-Felon
(a) Agency Approach (Majority): FM does not apply if an adversary to the crime, rather than a
felony, personally commits homicidal act
o State v. Canola (robbery victim shoots/kills s co-felon; conviction revd): Act has to be
committed by perpetrators own hand or someone acting in concert or in furtherance of
felonious undertaking

Law 120: Criminal Law

Professor Greenberg

Unanticipated actions of co-felon

Ex. United States v. Heinlein (men rape woman one stabs her. guilty of FM,
other 2 not): Unanticipated actions of a felon not in furtherance of the common
purpose cannot be attributed to co-felons
(b) Proximate Causation Approach (Minority): Felon is liable for any death proximately
resulting from the felony, whether the shooter is a felon or a third party
o Ex. Policeman shoots fellow officer in gun battle w/ robbers
(5) Vicarious Liability
Relevant in agency jurisdictions
Taylor v. Superior Court: Getaway driver waiting outside charged with murder of accomplice who
was shot by store owner during armed robbery. Not guilty of felony murder no agency.
o Co-felon inside store made threats while holding gun which prompted store owner to
shoot another co-felon. Driver guilty of DHM under accomplice liability, just as
extremely reckless co-felon could be charged w/ DHM
o Problem: liability based wholly on store owners actions
(6) Killing of Co-Felon [See Murray Outline, p.29]

MPC 210.2(1)(b)
F-M only exists under enumerated felonies: Presumption of extreme recklessness where engaged,
accomplice, attempting or fleeing from robbery, rape, arson, burglary, kidnapping, felonious escape.

Mistake of Fact/Mistake of Law

i. [1] Specific Intent Crimes: not guilty if mistake in fact negates specific-intent portion of crime
(reasonableness does NOT matter)
1. BUT: receiving coke when you thought it was heroin, under a specific intent statute of
knowingly receiving a controlled substance doesnt negate the specific intent
ii. [2] General Intent Crimes: not guilty if mistake in fact was REASONABLE
iii. [3] Strict Liability Crimes: NEVER a defense
b. MPC
i. 2.04(1): Mistake is a defense if it negates the mental state required to establish any element of the
a. 2.04(2): No defense if the actor would be guilty of another offense had the facts been as
he supposed. is guilty of the LESSER crime (contrast w/ Legal Wrong, below)
b. 213.6(1): Defense is not available if it turns on childs age being under 10
c. Specialized Doctrines
i. [A] Moral Wrong: No defense where, if facts had been as believed them to be, he was still committing
an immoral act
ii. [B] Legal Wrong: No defense where, had the facts been as believed them, he would have been guilty of
a lesser crime. is guilty of the GREATER crime (contrast w/ MPC)
1. Problem: Person who intends to do lesser crime punished same as he who intends to do greater
2. Usually applies to grading of some drug offenses
i. NEVER a defense, EXCEPT when:
1. [1] Reasonable Reliance Doctrine: Person relied on an official statement of law later
determined to be erroneous, obtained from the person or body with the responsibility of
interpreting, administering, or enforcing the law.
a. Person cannot rely on his own erroneous interpretation of the law
b. Statement must come in an official manner
c. There are exceptional cases where citizens are not expected to know the law (Lambert v.
California see Levy notes)

Law 120: Criminal Law

Professor Greenberg



[2] Ignorance or Mistake that Negates Specific Mens Rea:

a. [a] When laws specifically require that knowledge of law is an element of the crime
b. [b] Collateral Mistake: Mistake relates to law other than which is charged
i. Ex. Regina v. Smith (Conviction reversed. Law was mistaken about was
LL/T law, not the criminal law he was being charged with)

i. 2.04(1): Ignorance/mistake that negates mens rea like mistake in fact If it negatives an element, its
a defense
ii. Reasonable Reliance: 2.04(b)(3) acting in reasonable reliance upon an official statement of the law
afterward determined to be invalid or erroneous, by the public officer or body charged with interpreting,
enforcing or administering that law


Only relevant for result crimes (comes up when death/injury not directly caused)


o [1] But For/Cause-In Fact: But for As action, would B have still been harmed when he was?
Concurrent Sufficient Causes
General requirement of but-for causation doesnt apply if result is from 2 actors acting
concurrently, either of which would have been sufficient to cause the result (ex. A and B shoot C
o [2] Proximate Cause/Legal Cause
Courts define in different ways:
(a) Foreseeability of Ultimate Harm (Arzon test)
(b) Foreseeability of the Exact Manner in Which the Harm Comes About (Warner Lambert
Forseeability isnt sufficient when theres an intervening human act
Ex. State v. Pressler [After a fight with her husband, woman left and chose to spend the night
outside her fathers house instead of going inside. She froze to death. No liability victims
intervening act was a superseding cause of the harm.]
Exception: Non-Responsible Victim
o Ex. Stevenson v. State [D abducted victim and raped/tortured her over days. She takes
poison; D doesnt take to hospital. She died 10 days later Victim rendered
irresponsible by mental and physical injuries inflicted by D]

Model Penal Code (2.03)

o s conduct has to be the but-for cause of harm
o Harm to a different person than contemplated doesnt break the causal chain
o Actual result involves the same kind of injury or harm as the probable result and isnt too remote or accidental in its
occurrence to have a just bearing on the actors liability or on the gravity of the offense

Mens Rea

Specific Intent (specific intent to do AR AND
specific intent to cause the result)


1) Proximity Test (dangerous proximity to


2) Equivocality Test (have to engage in


conduct that unequivocally is criminal)

Not Required (and Factual Impossibility not a


1) Conduct: Purpose
2) Result: Purpose or Belief
3) Circumstances: Same as Offense
Substantial Step Test
a) Has taken a substantial step
b) Does that step strongly corroborate w/ criminal
Not Required (and Factual Impossibility not a

Law 120: Criminal Law

Professor Greenberg
Legal Impossibility
Factual Impossibility

Required (legal impossibility IS a defense)

NO Defense

Not Required (legal impossibility NOT a defense)

NO Defense
NO Defense
BUT: 2 Cases of Not Guilty
1) Inherently unlikely attempts (ex. Voodoo
2) Pure Legal Impossibility (ex. smuggles
money across borders and thinks its a crime
even though it isnt)

Most states treat attempt as lesser offense; Can NOT be convicted of attempt and complete crime (Merger Rule)

Defense: Impossibility
o [1] Legal Impossibility
If the actors goal is illegal but commission of the offense is impossible due to a factual mistake regarding
the legal status of some circumstance that constitutes an element of offense
Ex. Accepting goods falsely believed to be stolen, shooting a stuffed deer out of season
o [2] Factual Impossibility
When a persons intended end constitutes a crime, but he fails to consummate the offense b/c of a
circumstance unknown to him or beyond his control
Ex. Pickpocket putting hand in victims empty pocket, shooting into victims empty bed

Defense: Abandonment
o CL: Only a defense if the voluntarily and completely renounces his criminal purpose
voluntary only when it is the result of repentance or genuine change of heart
NOT complete if actor postpones criminal endeavor
o MPC: Recognizes affirmative defense only if
A) Abandons effort to commit crime or prevents it from being committed AND
B) Conduct manifests a complete and voluntary renunciation of criminal purpose

Accomplice Liability

A way of being held guilty for the underlying offense when someone else is the primary actor
Two bases for being accountable for the conduct of another person
o 1) Assists other in committing an offense
o 2) Co-conspirator who commits a crime in furtherance of their agreement
In this case mere existence of conspiracy sufficient to justify liability for the others conduct (see Pinkerton
doctrine, below)
No Merger

Mens Rea


Basic Mens Rea: Intent
1) Conduct: Purpose
2) Result: Purpose
3) Circumstances: Purpose
1) You help actually aid, assist
2) You encourage influence (request,
order, advise, recommend, etc.)
Actually has to commit crime


1) Conduct: Purpose
2) Result: Same as Underlying Offense
3) Circumstances: Punts
1) Aids or ATTEMPTS to Aid
2) Solicits [Encouraging]
Crime doesnt actually have to be committed

Natural-and-Probable Consequences Doctrine (People v. Luparello)

o An accomplice to crime A is also an accomplice in crime B if in the ordinary course of things crime b might
reasonably ensue form the planned events.
Not enough that crime B might reasonably ensue it must be w/in the normal range of outcomes if
nothing unusual intervenes

Law 120: Criminal Law

Professor Greenberg

No Natural-and-Probable Consequences Doctrine in the MPC


Conspiracy both an inchoate offense [can prosecute before crime completed] and a complicity doctrine [can prosecute for
the consummated offenses of another]
Like Attempt, unlike complicity, conspiracy is a separate offense carrying its own penalty

An agreement by 2 or more persons to commit a criminal act

o (1) 2 purposes
[a] to form an agreement
[b] to commit a crime
o (2) Have to agree to commit a crime or series of crimes
o (3) Some Jurisdictions: Have to commit overt act in furtherance of the conspiracy
This act can be innocent in and of itself (could be going to store to get supplies)
Much less than what is required under attempt law
Only 1 of the conspirators has to commit the overt act
Some state have no overt act requirement for most serious offenses while other state require a more
substantial overt act

o Traditional: No merger (can be convicted of both crime and conspiracy)
o MPC 1.07: No merger if conspiracy is for more than just the crime or for a different crime
CANT be convicted of both offenses if one offense consists of a conspiracy to commit the other

The Pinkerton Doctrine: Conspiratorial Liability

o Complicity based solely on a conspiratorial relationship can be used to make someone liable for a substantive
offense they didnt commit
o Doctrine: Party to conspiracy is responsible for any criminal act committed by an associate of it if
[1] Crime falls w/in the scope of the conspiracy OR
[2] Crime is a foreseeable consequence of the unlawful agreement
Thus act doesnt have to be w/in scope of conspiracy if it is reasonably foreseeable as the natural
consequence of the conspiracy
Ex. State v. Bridges (s friends bring guns to party to hold back crowd while fought. Shoot
into crowd, kill. s conviction affirmed)
o Major distinguish from accomplice liability: Actual assistance in the crime is not required.
Accomplice liability requires proof that actor at least indirectly assisted
For Conspiratorial many jurisdictions hold that person may be held responsible for actions of his partners
in crime just because he is a party to a conspiracy
Usually an accomplice is also a conspirator but one can be a conspirator w/out being an accomplice
o Many jurisdictions reject the Pinkerton Doctrine or limit it to major (not minor) participants in the conspiracy
o MPC rejects Pinkerton Doctrine have to meet accomplice liability requirements to be guilty

MPC 5.03
o Mens Rea: Purpose to promote or facilitate commission of the crime
Conduct: Purpose; Result: Purpose; Circumstance Elements: Punts
o Actus Reus
Act in pursuance by any co-conspirator (except for 1st and 2nd degree felonies)

a. Conduct under certain circumstances criminal but under special circumstances not wrongful and perhaps desirable
b. Underlying theories: See Murray, 12

Law 120: Criminal Law

Professor Greenberg


c. Justification and Mistake in Fact: Can assert self-defense if mistake in fact regarding the threat was reasonable
d. Justification vs. Excuse
i. Accomplice liability
1. Accomplice not criminally responsible if aiding justified act
2. Accomplice is criminally responsible if aiding excused act (b/c excuse relates to condition
particular actor)
ii. Third party conduct
1. Justification can be invoked by 3rd party (ex. X kills Y when Y threatens As life)
2. Excuses cannot be invoked y third parties (ex. X cannot kill Y b/c A is insane)

[A] Self Defense

USE OF UNLAWFUL FORCE by another person. And use of this force CANT BE EXCESSIVE.
ii. Elements
1. (1) Reasonable Belief
a. Subjective belief w/ objectively reasonable grounds (for instance youre a really good
psychiatrist and know the persons bluffing)
b. If belief honest BUT unreasonable
i. Majority: NO DEFENSE
ii. Imperfect Self Defense: In some jurisdictions Unreasonably mistaken actor
may be able to mitigate offense to voluntary manslaughter
1. Idea is that you were provoked or under EED
iii. MPC: Would be guilty of negligent homicide (if negligently believed) or
manslaughter (if recklessly believed)
c. Ex. People v. Goetz [man on bus shot 4 black kids, claimed to protect himself acquitted
of all counts except carrying an unlicensed concealed weapon]
i. Rule: Reasonableness is objective but should be loked at based on
circumstances of in s situation
1. Relevant knowledge had about person, physical attributes of and V,
prior experiences of , circumstances of the event
2. (2) Necessary: Cannot use deadly force if non-deadly force will suffice
3. (3) Imminent/Immediate Threat: Force will occur immediately or at once
a. Words alone not sufficient to justify an assault to protect against imminent danger (State
v. Schroeder, Yoon, 17)
b. Inevitable harm is not the same as imminent harm so cannot use self-defense to
hunt and kill enemy
c. MPC relaxes imminent requirement when reasonably believed use of defensive foce
was immediately necessary
4. (4) Unlawful Force
5. (5) Proportionality: Ones own force not excessive
a. Deadly force not permitted to repel non-deadly attack
i. Deadly force: force intended to cause death or grievous bodily harm
ii. Minor battery not deadly force even if death unexpectedly results (unless victim
is likely to die ex. frail)
b. NY allows deadly physical force when reasonably believes such other person is
committing or attempting to commit a kidnapping, forcible rape, forcible sodomy, or
iii. Aggressor
1. may gain right to self-defense by withdrawing from conflict and successfully communicating fact
(express or implied) to intended victim
2. When victim of non-deadly assault responds w/ deadly force, original aggressor regains right to
self-defense (some jurisdictions)
iv. Battered Womans Syndrome (BWS)
1. Confrontational Homicides kills during battering incident
a. Self-defense instruction almost always given
b. Nature of confrontation often sufficient grounds
2. Nonconfrontational homicides kills while lull in violence
a. Majority: no self defense instruction
3. Hire third party no SD instruction

Law 120: Criminal Law

Professor Greenberg


Courts allow expert evidence on BWS to establish whether had honest/reasonable belief that
danger was imminent
5. State v. Kelly [Abused wife sables H w/ scissors after fright when she sees him running towards
w/ hands raised]
a. Court says jury must consider s situation and knowledge, but ultimate question is
whether reasonable person, not reasonable battered woman, would believe in need to kill
to prevent imminent harm
6. State v. Norman [Husband abused wife for use, prostituted her. Wife tries to get help w/out
success. Kills him in his sleep. Convicted of manslaughter no defense b/c harm was not
v. MPC Self Defense
1. BELIEVES that such force is IMMEDIATELY NECESSARY to protect himself against the
exercise of UNLAWFUL FORCE by the other on the PRESENT OCCASION
2. Belief
a. Only need subjective belief to use force (as opposed to CLs reasonable requirement)
b. When is reckless or negligent in regard to the facts relating to justifiability of conduct,
justification defense unavailable for offense which requires only recklessness or
c. Honest, unreasonable belief
i. (a) Negligent in belief (should have known) negligent homicide
ii. (b) Reckless in belief (could be but I dont car) manslaughter
3. Immediately necessaryon present occasion (as opposed to CLs imminent)
a. Self-protective action may be allowed sooner than in CL
4. Aid of Third Party
a. Use of force is justifiable to protect a third person when (See Murray, 15)
5. Deadly Force
a. Deadly force justified when actor believes such force is immediately necessary to protect
himself against death, serious bodily injury, forcible rape, kidnapping
b. Deadly force prohibited
i. Retreat: if knows that he can avoid necessity of using force by retreating
1. Retreat not required in hom

[B] Necessity
i. commits an offense on one hand to avoid a suffering (of self or others) on the other hand
ii. CL Defense: Six Conditions
1. Faced with clear and imminent danger
2. must expect, as a reasonable person, that his action will be effective in abating the danger he
seeks to avoid
3. No effective legal way to avert harm
4. Harm that will cause by violating the law must be less serious than harm he seeks to avoid
a. Weighed against harm reasonably foreseeable at the time
5. Lawmakers must not have anticipated the choice of evils and determined the balance to be struck
between competing values in a manner in conflict w/ s choice
6. must come to situation with clean hands
a. Must not have wrongfully placed himself in a situation in which he would be forced to
engage in criminal conduct
iii. Exceptions
1. Some states limit defense to emergences created by natural forces
2. Necessity does not apply to homicide
3. Some states limit to protection of persons and property (ex. may not act to protect reputation or
economic interest
iv. Necessity as a defense to homicide
1. Regina v. Dudley and Stephens no defense: harm they were seeking to avoid not yet immient
2. Mountain climbers Murray, 16
v. MPC Necessity
1. Conduct justified if:
a. Believes his conduct is necessary to avoid harm to himself or another OR
b. The harm avoided is greater than that done (to be determined by judge/jury)
c. No legislative intent to exclude the conduct
2. Distinctions w/ CL

Law 120: Criminal Law

Professor Greenberg


Rejects CL imminence reuirement

Person doesnt automatically lose defense b/c he was a fault for creating the necessitous
i. Only lose defense if mens rea not met
All forms of necessity qualify
i. Not limited to emergences created by natural forces, physical harm to persons or

Statutes compared:



MPC (p. 816)

If D is neg or reck. in creating
situation, no defense if crime requires
neg. or reck.

Reasonably believe (jury)

Actually believe

Avoided harm

D has to reasonably believe

harm avoided is greater

Harm has to actually be greater


IL (p. 811)
Without blame

NY (p. 817)
Without blame

Actually be necessary (jury)

as an emergency measure
Actually greater

Imminent harm

a. Although actor has harmed society, she should not be punished or blamed for causing the harm
b. Underlying theories: See Murray, 12
c. Excuse defenses:
i. (1) Involuntary Act
ii. (2) Deficient but Reasonable Actions
1. Cognitive Deficiency (Mistakes)
2. Volitional Deficiency (Duress)
iii. (3) Irresponsible actions (person could not have been expected to act otherwise, incapacity for making
rational judgments)
1. Infancy
2. Legal Insanity
i. Does not negate mens rea all elements of the crime can be shown
ii. No a defense to homicide
iii. Elements
1. (1) Another person threatened to kill or grievously injure the actor or third party unless he
commits the offense
a. Threat must emanate from human
b. Threat must be of deadly force
2. (2) Actor reasonably believed the threat was genuine
3. (3) Threat was present, imminent, and impending at the time of the criminal act

[B] Insanity (More notes: Murray, 20)

i. Rationale, alcohol (doesnt qualify as mental disease/defect un less you can show cause physiological
ii. MNaughten Test: Person insane if, at the time of the act, was:
1. (a) has to suffer from mental illness
a. What mental illness left to expert testimony and jury
2. (b) As a result, doesnt know the nature and quality of the act he was doing OR if he did know,
did not know that what he was doing was wrong
a. Dont know the physical aspect of what he was doing (thought was squeezing an arm)
b. Dont know the consequences of the action (throw lt match into building but doesnt
know it will start fire)
3. Know may be applied narrowly (person found sane if she can describe what she was doing)
or broadly ( able to evaluate conduct in terms of impact on others)

Law 120: Criminal Law

Professor Greenberg


Nature and Quality If knows squeezing neck but does not know it is causing pain then sane by
first prong of test
iii. MPC 4.01
1. At the time of the conduct, as the result of a mental disease or defect, he lacked substantial
capacity to
a. Appreciate the criminality [legislature may adopt wrongfulness] of his conduct OR
b. To conform his conduct to the requirements of the law
a. appreciates rather than CLs know appreciate is more like understandingi (can
know without fully understanding)
b. lacks substantial capacity less stringent than MNaughten
c. Many states moved away from MNaghten test because it required absolute incapacity
and adopted MPC. Then as backlash to Hinkleys acquittal, many states moved back to
MNaughten or stricter