12/17/2014

Actus Reus
Conduct: What D does or how he acts

E.g. enters, restrains, takes, makes

Not thoughts

Harmful results are not required

o E.g. driving under the influence of alcohol
o The crime is committed whether or not any harmful result occurs
(Attendant) Circumstances : background facts. Static facts

e.g. a dwelling, belonging to another, at night, under 18, not open to the public

found in definition of crime: the crime cannot be committed unless the attendant circumstances are satisfied

if the attendant circumstances are not met, the specific crime is not satisfied another crime is likely to be applicable though
Results: effect of what D does

Causes death, causes bodily injury, brings about

An end result that can be met in any number of ways compared to a specific act of conduct

E.g. murder

The nature of the defendants conduct does not definitionally matter

It does not matter how the result occurs (poison v. gun)

Results and conduct crimes

E.g. first degree murder: killing of another human being by means of

A result brought about by a certain type of conduct

Voluntary v. Involuntary Act

Implicit in almost every crime, whether stated or not

An act is simply a bodily movement, muscular contraction

o E.g. pulls trigger, raises an arm, blinks her eyes, turns key, walks, talking
o Not mental acts like thinking

voluntary movement of the body which follow volition (will)

voluntary uses the human mind, an involuntary act involves use of the human brain without aid of the mind

habitual acts: even though you may not notice what you are doing it is voluntary
Involuntary (complete defense)

reflexive actions, spasms, epileptic seizures, bodily movement while the actor is unconscious or asleep
o hypnotism
o Sleepwalking

Time frame between voluntary and involuntary act

o Not every act has to be voluntary, not even the last act
o A person is not guilty of an offense unless her conduct, which includes a voluntary act, and which must be accompanied by
a culpable state of mind (the mens rea of the offense), is the actual and proximate cause of the social harm, as proscribed by
the offense.

Decina: epileptic who decided to drive even knowing that he was likely to have a seizure

Acts committed during epileptic seizure are involuntary

If D knows he suffers from epilepsy, consciously chooses to disregard potential consequence acted voluntarily
o How broad or narrow is the time frame
Possession


Act is knowingly receiving or procuring the property or failing to disposes oneself of the object after becoming aware of its presence

Bradshaw:
Omission (with a duty to act)

Common law duty to act: commission by omission : no guilt by omission unless there is a legal duty to act

Status relationship: parent-child, married couple, master-servant not lover

o Beradsley: no duty to defendants lover
o Cardwell: Person with duty of care must take steps that are reasonably calculated to achieve success

Contractual obligation: paid nurse, paid babysitter, doctor to patient

Act followed by omission

o Creation of risk: A person who wrongfully harms another or anothers property, or who wrongfully places a person or her
property in jeopardy or harm - even if accidental
o Voluntary assistance (undertaking): One who voluntarily commences assistance to another in jeopardy has a duty to continue
aid, at least if a subsequent omission would put the victim in a worse position than if the actor had not initiated help.
Applies even if the omitter had no initial responsibility to rescue the victim
o Statutory duty bad Samaritan laws: rare Vermont style laws that make a bystander give reasonable assistance to another
person who exposed to harm low penalty hard to enforce
MPC Actus Reus

2.01(1): Need a voluntary act or the omission to perform an act of which he is physically capable

1.13(2): Act- bodily movement whether voluntary or involuntary

o does not define voluntary acts, but does enumerate bodily movements that are involuntary

2.01(2)(d): reflexes, convulsions, conduct during unconsciousness, sleep, or due to hypnosis, and generally an conduct that is not a
product of the effort of determination of the actor, either conscious or habitual.

2.01(3)(b): liability for the commission of an offense may not be based on an omission unaccompanied by action unless:
o (1) Statue: if the law defining the offense proves for it OR

e.g. MPC 220.1(3) failure to report a dangerous fire

o (2) Other sources: the duty to act is otherwise imposed by law

Include duties arising under civil law (torts or contracts)

Omission v. Act

Medical omission:
o Contractual obligation: duty to provide ordinary but not extraordinary care ends when the patient was no meaningful
chance of medical improvement
o Disconnecting machines is equivalent to an omission because the machines acts similar to a manually administered injection

Mens Rea
Generalized mens rea

A general immorality of motive, vicious will, or an evil-meaning mind, willful malicious

o Do not need to show that the actor caused the proscribed harm with any specific mental state i.e. dont need to show that
the specific offense was done intentionally, or knowingly
o This was original idea that was eventually overturned
o Old courts have also said that willful/vicious will amounted to modern day recklessness knew of a risk and
disregarded it
Common Law

Mens rea must relate to each element of the crime for which D is charged
o Different levels or degrees of mens rea culpability
o Can be specified
o If unspecified: reckless (or gross negligence) is the minimum
o Mens rea must relate to the specific crime in question

Terminology

Intentionally or Intent

Purpose: If it is his desire (conscious object) to cause the social harm

Odds of death occurring do not matter, only matters that D wanted death

Knowledge: If he acts with knowledge that the social harm is virtually certain to occur as a result of his conduct

Has to be a very high probability that the harm will come about

Short of divine intervention, the result will come about. E.g. bomb in airplane but praying for people

Both subjective faults

In both cases, it is based on what the actors purpose or knowledge was

There is no knowledge if the person prayed against a result and truly believed this prayers were always
answered

Insufficient that an actor should have been aware as a reasonable person

Alternative use: The intent to cause a particular results (e.g. kill another) or to engage in specified conduct (e.g.
drive a car) is defined narrowly in a statue to mean that it was the actors purpose, desire , or conscious objective
to cause the result or engage in the specified conduct

Specific Intent: by the crimes definition there is specific motive that needs to be reached.

E.g. intent to steal: cannot be guilty of this crime if you borrowed something without asking with the
intent (motive) to give it back

Crime requiring actual knowledge/purpose of some fact or circumstance

E.g. bigamy, some jurisdictions may require D knew he is still married

Proving specific intent

Circumstantial evidence, mandatory presumption, permissive presumption

Presumed to intend the natural and probable consequences of your actions

Knowingly or with knowledge with respect to attendant circumstances

someone knows a fact when

they are aware of the fact actual knowledge

correctly believes that the fact exists correct belief

some also allow willful blindness

1. aware of a high probability of the existence of the fact in question

2a. takes deliberate action to avoid confirmation of the fact (affirmative step) or

2b. purposely fails to investigate in order to avoid confirmation of the facts

Willfully/Malice

an act done with bad purpose or with an evil motive

intentional violation of a known legal duty or a purpose to disobey the law

mistake of law

e.g. D asserted what he believed to be his constitutional privilege not to incriminate himself, by refusing
to answer questions propounded to him by the IRS. As it turned out, the constitutional provision did not
apply in his circumstances. Therefore, he was prosecuted for willfully refusing to answer the questions

If willful means intentional, D was guilty because he intentionally refused to answer questions

Ds conviction was overturned , however, because his refusal, although intentional, was based on an
erroneous belief that he had a lawful right to refuse to answer. Therefore, he lacked an evil motive for
the violation, and did not act with the purpose of disobeying the law

Mistake of law
Risk taking

(1) desirable or at least neutral risk-taking

(2) risk-taking that justifies civil liability (civil liability)

(3) risk-taking that crosses the civil line and justifies criminal liability (criminal negligence) and

(4) even more culpable risk-taking (recklessness)

Negligence/Reckless (in common law both terms used)

objective standard: an actor is not blamed for a wrongful state of mind, but instead is punished for his morally
blameworthy failure to realize that he Is taking an unjustified risk for his failure, in other words, to live u to the
standards of the fictional reasonable person

negligent if conduct constitutes a deviation from the standard of car that a reasonable person would have observed
in the actors situation


learned hand factors come into play
Civil v. criminal negligence

civil negligence usually considered not enough for crime

criminal negligence: gross eviation from the standard of reasonable care

Hand: PL far outweighs B

Common law generally requires proof that the actor took a substantial and unjustified risk. However, it
might be better to say that the actor must take an substantially unjustifiable risk. That is substantial
should not be an adjective modifying risk; but an adverb modifying the unjustifiably of the risk. Even
a non-substantial risk, If taken for no good reason at all, should constitute criminal negligence

Thus a just for the hell of it risk should hold criminally negligent because there is a non existent
justification for the risk-taking

Reasonable person objective

generally, a defendants unusual physical characteristics (e.g. blindness), if relevant to the case, are
incorporated into the reasonable person standard, a defendants unusual mental characteristics are not
o Recklessness subjective/objective

more culpable than criminal negligence

requires proof that the actor disregarded a substantial and unjustifiable risk which the actor was aware of

differs from criminal negligence in that here the negligence is founded on the actors state of mind- whether he
knew of the risk and yet consciously disregarded it
Common Law statutory interpretation
o X-Citement Video

Felony: knowingly transport, receive, or distribute in interstate or foreign commerce any visual depiction
involving the use of a minor engaging in sexual explicit conduct

Where does the specific intent knowingly apply. Just to distributing or to knowing if the girl was a minor as well

Grammatical reading: knowingly would just modify the conduct (transporting)

When there is no clear cut answer to statutory interpretation, the court will look at legislative intent

Here the court held that knowingly did apply to whether the girl was a minor

Assumption of criminal law: presumption in favor of scienter 9mens rea] requirement should apply to EACH of
the statutory elements that criminalize OTHERWISE innocent conduct
o


Selling the videos is normally legal
General Intent
o historically referred to any offense for which the only mens reas required was a blameworthy state of mind
o only required proof of mens rea in the culpability sense of the term
o can be convicted of a lesser state of mind as long as there is some culpability

Specific Intent
o historically was meant to emphasize that the definition of the offense expressly required proof of a particular mental state
o offense in which the definition of the crime expressly

1. Includes an intent or purpose to do some future act, or achieve some further consequence (i.e. special motive for
conduct), beyond the conduct or result that constitutes the actus reus; OR

e.g. burglary is a specific-intent crime because committing the actus reus alone does not satisfy the
crime

2. Provides that the actor must be aware of a statutory attendant circumstance. An offense that does not contain
one these features is termed general intent

e.g. battery- intentional application of unlawful force upon another

the definition does not contain any specific intent. The only mental state required is intent to apply
unlawful force upon another (the actus reus of the crime)
MPC Mens Rea
2.02(1): Provides that, except in the case of offense characterized as violations (civil penalty/fine) a person may not be convicted of an
offense unless he acted purposely, knowingly, recklessly, or negligently, as the law may require, with respect to each material element of the
offense

Need to look at the specific statue and determine the mens reas of reach material element of the offense

There may be different mental states required for different elements of the offense
o E.g. it is felony top purposely do X and knowingly do Y, so as to recklessly cause Z

No old-fashion mens rea

*No common law specification between general and specific intent

only four culpable states of mind

Culpability Terminology

Purposely
o Results/Conduct 2.02(2)(a)(i): A person acts purposely if it his conscious object to engage in conduct of that nature or
to cause such result it is the actors goal/objective

2.03(2)(a): when purposely causing particular result is an element of an offense, that element is established if
the actual result differs from that designed or contemplated, only in respect that a different person or different
property is harmed
o Attendant Circumstances 2.02(2)(a)(ii): if he is aware of the existence of such circumstances or he believes or hopes
that they exist

e.g. if D enters an occupied structure in order to commit a felony therein, he has acted purposely regarding the
attendant circumstance that the stricture was occupied if he was aware it was occupied or hoped it would be

Knowingly
o Results 2.02(2)(b)(ii): A result is knowingly caused if the actor is aware that it is practically certain that his conduct
will cause such result

Subjective: if D lacked normal mental faculties, or was for any reason distorted, so the he was subjectively
unaware that the result was practically certain no knowledge
o Conduct/Attendant Circumstances 2.02(2)(b)(I): One acts knowingly if he is aware that his conduct is of that nature
or that such [attendant] circumstances exist

e.g. D fires a loaded gun in Vs direction, and was prosecuted for knowingly endangering the life of another. D
is guilty if he was aware that his conduct endangered the life of another person. If he was not aware (perhaps
because he did not see anyone in the vicinity), then D did not endanger another knowingly, no matter how obvious
Vs presence may have been to others.

E.g. If D purchased stolen property and was prosecuted for knowingly receiving stolen property., D would be
guilty of the offense if, when he received the property, he was aware that it had been stolen.

Willful Blindness 2.07(7): In order to deal with the problem of willful blindness, the Code includes a
controversial provision that states that knowledge it established, if a person is aware of a high probability of.
[the attendant circumstances] existence, unless he actually believes that it does not exist

Recklessly
o 2.02(2)(c): consciously disregards a substantial and unjustified risk that the material element exists or will result from his
conduct

A risk is substantial and unjustifiable if considering the nature and purpose of the actors conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a lawabiding person would observe in the actors situation.

Negligently
o 2.02(2)(d): A persons conduct is negligent if the actor should be aware of a substantial and unjustifiable risk that the
material element exists or will result from his conduct.

Same definition of substantial and unjustifiable EXCEPT the term reasonable person is substituted for lawabiding person

A risk is substantial and unjustifiable if considering the nature and purpose of the actors conduct and the
circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a
reasonable person would observe in the actors situation.

Reckless and negligence the reasonable person

o The reckless actor consciously disregards the risk, whereas the negligent actors risk taking in inadvertent
o *Tracks the common law approach
o the reasonable person (or law-abiding) is evaluated from the perspective of a person in the actors situation

MPC statutory interpretation

o 2.02(4): If a statute defining an offense prescribes the kind of culpability that is sufficient for the commission of the
offense, without distinguishing among the material elements thereof, a court will interpret such culpability provision as
applying to every material element of the offense, unless a contrary purpose plainly appears.
o Simply: a single mens rea term whatever it is modifies each actus reus element of the offense, absent a plainly
contrary purpose of the legislature

E.g. burglary: enter an occupied structure with purpose to commit a crime therein

Clear legislative intent to not have purpose modify enter and occupied structure

Since not specified it is purposely, knowingly, or recklessly

o 2.02(3): When the definition of a criminal offense is silent regarding a matter of culpability as to a material element of the
offense (as the above burglary offense) The material element is satisfied if a person acts purposely, knowingly, or
recklessly.

MPC
Obj./sub./both
Result
Conduct
Attendant
Circumstances

Purposely
2.02(2)(a)(i)-(ii)

Knowingly
2.02(2)(b)

Recklessly
2.02(2)(c)

Negligently
2.02(2)(d)

Subjective
Actors goal
Actors goal
Knows/hopes

Subjective
Practically certain
Certain/aware
Certain/aware

Hybrid
Conscious disregard
Conscious disregard
Conscious disregard

Objective
Should be aware
Should be aware
Should be aware

Mens Rea Nuances

Strict liability offenses: Common Law

Strict Liability: or crimes that, by definition, do not contain a mens rea requirement regarding one or more of elements of the actus
reus

There is a presumption against strict liability

Mallum prohibtum v. mallum in se

o 1. Public Welfare Offenses

mallum prohibtum: wrong because it is prohibited

newer crimes that the legislature enacted for public health, safety, etc.

no mens rea

E.g. sale of impure food or drugs, anti-pollution laws, traffic and motor regulations

Morissette Indicca of public welfare crimes

Recently created crimes to protect public welfare

Low punishment/penalty

Low stigma

Usually able to prevent with reasonable care

o 2. Non Public Welfare Offenses

Usually sexual and drug related crimes

Whereas public welfare crimes usually carry only minor penalties, non public welfare strict liability offenses often
result in severe punishment. Second non public welfare offenses typically involve malum in se conduct. Violators,
therefore, are stigmatized despite the absence of proven moral fault

e.g. statutory rape: no mens rea with regard to the attendant circumstance of age
Strict Liability: MPC

2.02(1): always need mens rea

Exception: 2.05: provides that the voluntary act and mens rea requirements need not apply to offenses graded as violations, rather
than crimes. Violations are offenses that cannot result in imprisonment or probation, but may result in fines. (< $500)
MPC is strongly against strict liability
*Different outcomes for statutory rape and some drug offenses

Mistake of Fact: Common Law

Mistake implies a wrong belief about the matter

a mistake of fact relating to an element of an offense exculpates an actor for social harm he causes in certain circumstances

Context of broad generalized mens rea and narrower normal culpability mens rea (elemental)
o Generalized Mens rea: proof that a person was factually mistaken demonstrates that despite appearances, he acted in a
morally blameless manner manner and that, therefore, he is not deserving of punishment for causing harm. In this sense a
mistake of fact negate mens rea in the culpability meaning of the term. (He did not act maliciously)
o Elemental: Because of a mistake, a defendant may not possess the specific state of mind required in the definition of the
crime. In such, circumstances the defendant must be acquitted because the prosecutor has failed to prove an express element
of the offense

**The first step in analyzing a mistake of-fact claim in a jurisdiction that follows common law doctrine is to identify the
nature of the crime for which the defendant is being prosecuted: Is it a strict liability, specific-intent, or general-intent crime?
o Strict-Liability

Rule: Under no circumstances does a persons mistake of fact negate his criminal responsibility for violating a
strict-liability offense

Statutory rape is a strict liability offense in most states regarding the attendant circumstance of the females age.
Thus Ds erroneous belief, no matter how reasonable, that the female with whom he is having intercourse is old
enough to consent, will not free him
o Specific-Intent Offenses (elemental)

Rule: A defendant is not guilty of an offense if his mistake of fact negates the specific-intent portion of the crime,
i.e. if he lacks the intent required in the definition of the offense

It was not matter that the defendants mistakes may have been unreasonable that the defendants may have been
reckless or negligent in their beliefs.

Acquittal follows from the fact that a person may not be convicted of an offense unless every element
thereof, including the mental-state element (e.g. the intent to steal) is proven, which cannot occur if the
defendant was genuinely mistaken
o General Intent Offenses

Rule: A person is not guilty of a general-intent crime if his mistake was reasonable, but he is guilty if his mistake
was unreasonable

E.g. D has nonconsensual sexual intercourse with V, whom he incorrectly believes is consent. D is charged with
rape, defined for current purposes as sexual intercourse by a male with a female not his wife, without her
consent.

In as-much rape is a general-intent crime, courts utilize the culpability approach to analyze Ds mistake
of fact.

If his mistake regarding Vs consent was reasonable, then he is not guilty of the offense.

This follows because, although the actus reus of the offense occurred, Ds state of mind in regard to the
prohibited conduct was nonculpable, i.e., his belief that she was consenting was on that a reasonable
person might have had.

If Ds belief as to Vs consent was unreasonable, however, than he acted with a culpable state of mind
that justifies his conviction of the offense.

Practical Effect: Looking at the reasonabless of the mistake of fact is to permit punishment on the basis of
negligence

Normally someone cant be guilty unless grossly negligent

Practical Effect: The mistake-of0fact rule permits conviction and punishment of a negligent wrongdoer as if he
were guilty of intentional wrongdoing.

Even though the person who did it intentionally was much more culpable than the person with the
unreasonable belief, they are punished the same
Moral-Wrong Doctrine (increasingly uncommon)

Rule: One can make a reasonable mistake regarding an attendant circumstance and yet still demonstrate moral
culpability worthy of punishment

There should be no exculpation for mistake where, if the facts had been as the actor believed them to be,
his conduct would still beimmoral essentially, the intent to commit an act that is immoral furnished
the requisite culpability for the related, but unintended outcome

See Regina v. Prince: D was charged or unlawfully taking or causing to be taken, any unmarried girl, being under
the age of 16 years, out of the possession and against the will of her father or mother. The girl in question was
14, but the jury found that P honestly and reasonably believed that she was 18

First applies the reasonableness test

Second, what did the defendant think he was doing?

Third, evaluate the morality of the conduct, based on the facts the actor reasonable believed them to be: here the
taking of an 18 year old against her parents will was self-evidently wrong imputes knowledge to D that he
acted immorally

Rule: a person who knowingly performs a morally wrong act assumes the risk that the attendant factual
circumstances are not as they reasonable appear to be and that, therefore, his conduct is not only immoral but also
illegal

The doctrine is triggered when the defendants conduct would be immoral had the situation been as he
supposed.

E.g. if the girl was homeless and he was taking her for her protection that would NOT be a
immoral act triggering the doctrine
Lesser Crime/Wrong Doctrine

Rule: If a persons conduct causes the social harm prohibited by More Serious Offense X, he is guilty of that
offense even if, based on his reasonable understanding of the attendant circumstances, he would be guilty of Less
Serious Offense Y if the situation were as he supposed it to be.

Practical: D is charged with the actus reus of the greater offense while ignoring the fact that the actors mens rea
was that of a lesser crime

Disproportionate punishment to the offenders culpability

Eg. What if a state provides that sexual intercourse by an adult with a person under the age of 12 constituted firstdegree rape, but it is the lesser offense of second-degree rape if the victim is older than 12 but under the age of 16

Assume that D reasonably believes that the person with whom he is having sexual intercourse is 14
years old, but in fact the victim is 11.

Charged with high offense

People v. Olsen
Mistake of Fact: MPC (elemental approach only)

2.04(1): Provides that a mistake is a defense, if it negates the mental state required to establish any element of the offense. It is
irrelevant whether the offense would be identified as general-intent or specific-intent at common law

Either the actor had the culpable state or mind required in the definition of the offense in question or he did not

Exception: 2.04(2): The code provides that the defense of mistake-of-fact is not available if the actor would be guilty of another
offense, had the circumstances been as he supposed.

*Unlike common law legal wrong, which maintains the D is guilty of the higher offense in such circumstances, the Code only permits
punishment at the level of the lesser offense

e.g. from the example in the lesser crime doctrine of first degree rape 12 or less, second degree rape 14 or less

is the victim is 13, the MPC would convict them for second degree rape based on Ds state of mind

another e.g.: poaching deer but end up killing a person punished for poaching

Mistake of Law: Common Law

Whether conduct constituted an offense or the meaning of an offense is rarely an element of that offense therefore it follows that
there is typically no mens rea element of an offense capable of being negated by an actors ignorance of the law

Exceptions to the general rule

o Reasonable reliance: A person is excused for committing a criminal offense if she reasonably relies on an official statement
of the law, later determined to be erroneous, obtained from a person or public body with responsibility for the interpretation,
administration, or enforcement of the law defining the offense

Narrowly applied. To be official the statement must:

1. Be contained in a statue later declared to be invalided

2. A judicial decision of the highest court in the jurisdiction, later determine to be erroneous; or

e.g. Cant act on decisions that are pending in the Supreme Court

3. An official, but erroneous, interpretation of the law, secured from a public officer in charge of its
interpretation, administration, or enforcement, such as the Attorney General of the state or in the case of
federal law, the United States

Must be official, e.g. cant be the attorney general telling you at the bar

Public works cant tell you about the rules of the road, etc.

Relying on your own interpretation is never an excuse if it is the wrong interpretation

Fair Notice

See Lambert v. California: the Court overturned Ds conviction for failing to register with the city of Los Angeles
as a prior convicted felon within 5 days of being there, as required pursuant to a strict-liability ordinance of which
D was unaware. Notwithstanding the usual rule that ignorance of the law is no excuse, the Court reversed the
conviction on lack of fair notice due process grounds.

Although it appears that this ruling could open up fraudulent claims of not knowing the law, the court saw this is
an atypical scenario

This situation deals with conduct that is wholly passive mere failure to register. It is unlike the
commission of acts, or the failure to act under circumstances that should alert the doer to the
consequences of his deed

Passive (omission) and malum prohibitum

Negating mens rea

To the extent that this type of claim is exculpatory, it is like a mistake-of-fact claim in that the defendant is
acquitted for the straightforward reason that the prosecution has failed to meet its constitutional burden of proof
regarding an essential element of the offense

Sometimes there is an element of a crime that stipulates that knowledge that the crime must be present

E.g. D is charged with rape after he has nonconsensual sexual intercourse with V. At the time of his actions, D
believed that V legally was his wife, thus taking his conduct outside the rape law, which prohibits nonconsensual
intercourse with a female not his wife. In fact, the marriage ceremony in which he and V participated in was
legally invalid, so V was legally not his wife

In these cases, the D presumably was aware of, and understood the meaning of, the criminal state (rape)
that was the basis of his prosecution. At the same time, however, the defendant was unaware of, or
misunderstood the import of, another law (marriage law), under the circumstances in which this mistake
of law arguably is relevant to the defendants criminal liability.

Shorthand: A mistake-of-law claim of the sort described here may be termed a different-law mistake, because the
claimed mistake related to a law other than the offense for which the defendant has been charged

First consideration for this defense: Whether the offense charged is one of specific intent, general-intent, or strict
liability
Specific Intent Offenses

Whether reasonable or unreasonable, mistake of law is a defense in the prosecution of a specific intent offense, if
the mistake negates the specific intent in the prosecuted offense

See Cheek v. Unites States D was an anti-tax activist who failed to file federal income tax returns for 6 years. As a
result, C was charged with 6 counts of willfully failing to file federal income tax returns.

willfully means a voluntary and intentional violation of a known law

D explained that he attended seminars sponsored by anti-tax organizations that indicated that wages did
not constitute income under the IRS code. Therefore, D testified that he believed he was not required
to report wages.

The supreme Court ruled that if the jury believed Ds outlandish believes, his mistake regarding the
meaning of the term income under the revenue code disproved that he intentionally violated a known
legal duty

Key: there was a specific intent in the statue that he did not violate

Belief does not have to be reasonable the jury gets to decide.

o General-Intent Offenses

Dressler says a different-law mistake, whether reasonable or unreasonable is not a defense to a general-intent
crime

Goes against what you would expect because people are punished in the absence of culpability, since one who acts
one the basis of a reasonable mistake of law lacks moral blameworthiness
o Strict-Liability Offenses

Book says a different-law mistake, whether reasonable or unreasonable, is not a defense to a strict-liability offense

Because there is no mens rea to negate

Mistake of Law: MPC
2.02(9): Unless the definition of a crime so provides, neither knowledge nor recklessness or negligence as to whether conduct
constitutes a crime or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense
Exceptions:

Reasonable Reliance Doctrine

o In many respects it codifies the common law doctrine

2.04(3)(b): Mistake of law is a defense when:

1. He relies on an official, but erroneous, statement of the law;

2. He relies on an official interpretation by a public official or body responsible for the interpretation,
administration or enforcement of the law; and


3. The reliance is otherwise reasonable
Commentary says a person may be excused in these circumstances because he has acted in law-abiding fashion, the danger
of fraud is slight, and her claim is not unduly difficult to prove or disprove
o Lawyers advice is generally not enough
Fair Notice
o 2.04(3)(a): A defendant is not guilty of an offense

(1) if she does not believe that her conduct is illegal, and

(2) was not published or otherwise reasonably made available to her before she violated the law

The code defense only applies if the statue was neither published nor otherwise made reasonably available to the
actor before she committed the crime

The code predates Lambert see above.

Under the MPC, Lambert would be guilty because the law was published and available to the citizen regardless of
the fact the prohibited conduct itself would not alert an actor to the need to investigate whether there is a relevant
published statue.
Ignorance or Mistake That Negates Mens Rea
o MPC requires proof of some culpable state of mind (repeated again)
o 2.04(1) provides that a mistake of law is a defense if it negated a material element of the offense, or if the law expressly
provides for a mistake of law defense
In order to convict an individual for illegal possession or acquisition of food stamps, the prosecution must demonstrate that the
accused had knowledge that his possession or acquisition of the stamps was in a manner forbidden by law. Liparota v. United States,
471 U.S. 419 (1985)
Relevant law read whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not
authorized by [the statute] or regulations can be criminally liable
Court held that knowingly in this context applied to all elements, relying specifically upon Morissettes statement that an injury can
amount to a crime only when inflicted by intention
o There seems to be a distinction for normally non criminal behavior
o

Homicide

Intentional Killing: Common Law

the killing of a human being by another human being with malice aforethought

Aforethought: not really important unless the statue asks for premeditation in an important way

Malice
o 1. The intention to kill a human being
o 2. The intention to inflict grievous bodily injury on another
o 3. An extremely reckless disregard for the value of human life (Depraved heart murder)
o 4. The intention to commit a felony during the commission or attempted commission of which death results (felonymurder)

Apply to states with first/second degree murder statues

o 1st determine whether a murder (as distinguished from a lesser offense or no offense) has occurred. That is, a lawyer cannot
logically determine what statutory degree of murder is implicated until he determines , in the first place, that the killing is
properly characterized as murder.

Must decide whether the homicide was committed with anyone of the 4 mental states that constitutes common law
malice aforethought
o 2nd Assuming a murder has occurred, three types of murder fall within the first degree category.

(1) Murders that are committed in a statutorily specified manner are considered sufficiently morally heinous to
merit the stiffest penalty. (e.g. poison, lying-in-wait, etc.) [see statue]

(2) Willful, deliberate, and premeditated killings [see statue]

(3) Homicide that occurs during the perpetration or attempted perpetration of statutorily enumerated felony (in the
originally Penn stature: arson, rape robbery, and burglary) is first degree [see statue]
o 3rd All other forms are murder in the second degree

if it is not within the first-degree, it falls unto second degree. Has to be expressly in the first degree

e.g. intentional killings that are not premeditated and deliberate:

intent to inflict grievous bodily injury killings;

depraved heart killings; and

deaths that occur during the commission of any felony not listed in the first-degree section of the murder
statue

1. The intention to kill a human being

o One who intentionally (purposefully or knowingly) kills another human being without justification or legally adequate
provocation express malice

Supposed to be the worst type of mental state

o Proving intent to kill

Natural and Probable Consequences Rule: (A way to presume intentions)

An intentional killing involves subjective fault: prosecutor must prove beyond a reasonable doubt that
the D formed the actual intent to kill another person, rather than simply, a reasonable person would have
knew that the conduct would result in death.

How is this proven?

(1) Ordinary people intend the natural and probable consequences of their actions

(2) The defendant is an ordinary person

(3) Therefore, he intended the natural and probable consequence of his actions

When the probable consequences of a Ds conduct is that another person will die, the preceding rule
allows the jury to infer the requisite specific intent.

E.g. if D savagely beats V over the head with a baseball bat, which actions cause Vs death, the
prosecution may seek to prove that D intended to kill V by demonstrating to the jury that the probable
consequence of such a beating was Vs death; therefore, in absence of evidence that D was no an
ordinary person, the jury may infer that D intended the natural and probable consequences of his
conduct, i.e. Vs death

Deadly-weapon: When a person kills another with a deadly weapon, proof of intent to kill is
strengthened further. When someone uses a deadly weapon directed at a vital part of the human
anatomy, an intention to kill may properly be inferred
Willful, Deliberate, Premeditated Killings
o Really just means premeditated
o It is meant to separate the worst kinds of murders which deserve the most severe penalties
o Problem: is someone that premeditates there killing really worse than someone who does it quickly?

Compare State v. Forrest where a loving child killed her terminally ill parent after long and careful consideration
in order to end the parent suffering to a case where a person impulsively pushes a small child sitting on a bridge
into the river

This is why degrees can be somewhat silly because the premeditated mercy killing is first degree where pushing a
kid off the bride like this is second degree

The point is to separate the most heinous murders but Forest shows that this is not the best way to do that
o Premeditated

1. No time is too short for a wicked man to frame in his mind the scheme of murder

Any interval of time between the forming of the intent to kill and the execution of that intent, which is of
sufficient duration for the accused to be fully conscious of what he intended is sufficient

Here premeditation loses its independent status it undermines the legislative division of murder into
degrees because the only difference between first and second degree is the time between the intent and
act and if that time can be no time at all there is no real difference

Commonwealth v. Carroll, p. 427

shot his wife 2 times in the back of the head. plead guilty, convicted of 1 st deg. murder in
bench trial.

Rule: lapse of time between formation and killing is immaterial no time is too short
o Commonwealth v. OSearo, p. 432: requirement of premeditation and deliberation is
met whenever there is a conscious purpose to bring about death

Equating premeditation and intention: 1st deg (intentional), 2nd deg. (extremely reckless, FM
2. Some appreciable time to premeditate

No specific period of time is required, but the essence of the term is preserved by requiring proof that
the killer had time not only to form the intent, but also to turn the matter over in his mind and to give the
matter at least a second thought

Here it is not easy for murder to be calculated in a matter of a split second

Proof of premeditation: In jurisdictions that interpret premeditation to require actual reflection

State v. Gutherie

stabbed co-worker in the neck (mocked him, snapped dishtowel that hit his nose, has
psychiatric disorder related to his nose). Convicted of 1 st deg. murder, life sentence.
Challenges jury instruction (first time)

Rule: although premeditation and deliberation are not measured by any particular period of
time, must kill purposely after contemplating the intent to kill some appreciable time
elapse
o There must be some evidence that considered and weighed his decision to kill in
order to establish premeditation and deliberation

People V. Anderson Test

Facts regarding the defendant's behavior prior to the killing which might indicate a design to
take a life (planning activity)
Facts about the defendants prior relationship with the victim which might indicate a reason to
kill (motive)
Evidence of the manner of killing was so particular ad exacting that the defendant must have
intentionally killed according to a 'preconceived design'
Bringing murder weapon, special way that it is less spur of the moment, putting on gloves,
etc.

First degree- strong evidence of 1 or evidence of 2 in conjunction with 1 or 3

California has backed away from this now and doesnt subscribe to a specific combination of
these and other things may suffice as well

People v. Solomon - other jurisdictions continue to approve Anderson's suggestion that

premeditation requires evidence falling in all three categories or in the specific combo above
2. The intention to inflict grievous bodily injury on another
o Malice aforethought is implied if a person intend to do grievous bodily injury to another, but death results
o Implied malice
o * A person who unjustifiably and inexcusably intends to cause injuries of this level of severity is guilty of murder if the
victim dies as a result of the attack.
3. An extremely reckless disregard for the value of human life (Depraved Heart Murder)
o Malice aforethought is implied if a persons conduct manifest an extreme indifference to the value of human life
o Extreme recklessness: The actor does not intend to kill his victim, but malice is implies because there is a wanton and
willful disregard of the likelihood that the natural tendency of the actors behavior is to cause death or great bodily harm
o Factors (Learned Hand Style)

Degree of risk: probability and magnitude of harm

Unjustifiability of risk

Actual awareness of risk

Balancing the factors to determine the degree of deviation from reasonableness

o Examples ? these are definitely example of MPC

Russian roulette

Lethal omission by a parent

Intentionally shooting firearm in a crowded room, building

o Distinguishing extreme recklessness with recklessness

recklessness or criminal negligence will bring a charge of manslaughter rather than murder

In more precise terms, a person kills recklessly (depraved) if he consciously disregards a substantial and
unjustifiable risk to human life. When such recklessness is extreme when the risk of death is great and the
justification for taking the risk is weak or non-existent- the actor is guilty of murder

In contrast, when a person should be, but is not, aware that her conduct is very risky (and unjustifiably so) the
risk-taking is inadvertent- her behavior may justify the appellation of criminal negligence, but the callousness
that connotes implied malice is lacking. In these less culpable circumstances, a killing constituted involuntary
manslaughter
4. The intention to commit a felony during the commission or attempted commission of which death results (Felony-Murder
Rule)
o Wide Scope: Declared that one is guilty of murder if a death results from conduct during the commission or attempted
commission of any felony

Early rule: Felon is strictly liable for killings that result from commission of a felony, regardless of whether D
knew or should have know their conduct was endangering life
o Causation Requirement

But-for the felony, the death would not have occurred

The result must have been the natural and probable consequence of the defendant's action or that it must have been
foreseeable

The result must be fairly attributable to the defendant's action, rather than to mere coincidence or to the
intervening action of another

King v. Commonwealth, p. 494 (reversed, no FM)

and co-pilot transporting 500 lbs marijuana, plane crashed. convicted of FM for co-pilots death

Rule: death must be a foreseeable result of the felony

Death not made more likely by felony (flying low to avoid det.)
o Numerated felonies will elevate the charge to murder in the first degree [see specific statue]
o In light of the strict-liability nature of the rule, D1, a robber, is guilty of murder if V1 dies from fright caused by the robbery

People v. Stamp: (California) D ordered V and others to lie down on the floor during a robbery; V, who had heart
disease, died from fright

Rule: Homicide must be the direct casual result of the felony whether or not death was natural/probable
consequence of felony

Not limited to foreseeable deaths/proximate cause

o The rule extends implicitly (and often expressly by statue) to accomplices in the commission of felonies. Therefore if S was
an accomplice in any of the hypothesized felonies, he would be guilty of murder, without regard to his own state of mind
relating to the death (for common law) (See Complicity)
o States Attempting to do away/limit with the rule

See Regina v. Serne: (no FM limiting FM rule) English approach

D took out insurance on son and property, house was lit, son died
Rule: Any act known to be dangerous to life and likely in itself to cause death, done for the purpose of
committing a felony which causes death, is murder

If subjective: no need for FM (depraved heart)

If objective: gross negligence standard (inherently dangerous)

See People v. Aaron (Mich.): Michigan supreme court abolished the felony-murder rule The statue did not
explicitly codify the felony-murder rule but provided that any murder in the course of designated felonies would
be murder rule but provided that any murder in the court of designed felonies would be murder of the first degree.

Since the statue did not define murder, the court felt free to employ its common-law authority to reject
the precedents recognizing felony-murder theory as a route to establishing malice and treated the statue
as simply raising what is otherwise murder (because malice has been proved) to first-degree murder
when occurring in the commission of an enumerated felony

We believe that it is no longer acceptable to equate the intent to commit a felony with the intent to kill.
Intent to do great bodily harm. Today we exercise our roe in the development of the common law by
abrogating the common-law felony murder rule

Felony-murder does not reach felony murder

People v. Dillon: CA court met with the same argument as the Michigan court but denied the view

See Oretga (N.M.): the state is required to prove intent to kill or conscious disregard for life (mens rea)
Practical Effects: Lower Burden of Proof

Many deaths that occur during a felony can likely be classified extremely reckless (depraved heart) but with this
there is a higher burden of proof for the prosecution because they will have to prove that the defendant took a
unjustifiable risk that manifested extreme indifference to the value of human life

Conversely, all that is required of a felony-murder prosecution is a death resulted during the
commission/attempted commission of a felony

There is not need to show intent or knowledge of conduct that was highly dangerous

Felony murder also can easily be evaluated to first degree if the felony is enumerated

Defendants can be convicted of murder for tort level negligence during a felony
Inherently Dangerous Felony Limitation

Abstract Approach: To determine whether a felony is inherently dangerous, a court will ignore the facts of the
specific case and, instead, consider the elements of the offense in the abstract look at the offense as it is defined
by statue. [judge-decided]

California is one of the few using this method

Test: whether a crime, by its vary nature cannot be committed without creating a substantial risk that
someone will be killed OR An offense carrying a high probability that death will result

People v. Phillips: theft isnt particularly dangerous, even though cancer-ridden child killed because of
the ploy

Failed depraved heart because a jury must have found that D was extremely reckless, but he
could have believed the child was going to die anyways

People v. Henderson: false imprisonment as defined is not inherently dangerous because it includes by
fraud or deceit which arent inherently dangerous

People v. Howard: driving with a willful or wanton disregard for safety or property is not inherently
dangerous
As Applied Approach: Many states determine the dangerousness of a felony by considering the facts and the
circumstances of the particular case to determine if such felony was inherently dangerous in the manner and
circumstances in which it was committed. [judge or jury decided]

Hines v. State: Felon out hunting and accidently shot friend FM

People v. Stewart: mother on crack binge, neglects feeding child allows jury to find
Limitation: Not in Furtherance (usually in resistance)

Agency Theory (majority)

Provides that the felony-murder rule does not extend to a killing, although growing out of the
commission of the felony, if directly attributable to the act of one other than the defendant or
those associated with him in the unlawful enterprise

Exception: Shield cases- A person is responsible for the acts of another if the actor-shooter is
functioning as an agent of the non-shooter

Store owner shoots one felon and innocent bystander no felony-murder because the shooting
was not in furtherance of the felony

If a co-felony does the killing then there is felony murder for all co-felons

See State v. Canola: Felons (F1,F2,F3) store owner (X). X and F1 die. F2 and F3 convicted of
felony murder
o Agency theory: F2 and F3 only liable for Xs death, not F1s
o Proximate Cause: F2 and F3 liable for both deaths
o Statue could support both but majority choose agency theory
o Concurrence: proximate cause theory

Exception: death of co-felon justifiable homicide

Key: Convince friend to run outside with water gun after telling police
justifiable homicide can be basis for murder conviction

Exception: extremely reckless nature during a felony causes third party to kill someone (only
guilty if it kills non-felon)

Proximate cause Theory

A felon is liable for any death that is the proximate result of the felony, whether the shooter is
a felon or a third party.
o E.g.in the hypo, F1 pointed a gun at X, threatened his life, and fired warning shots.
This conduct could be viewed as the proximate cause of Xs reasonable and
foreseeable response.
o If the circumstances were so viewed, F2 could be convicted of the death of his
colleague, F1 and of V, the innocent bystander.
o In contrast, the felony-murder rule might not apply if a pickpocket took money and
fled, and the crime victim unforeseeably pulled a gun and fired it at the felon, killing
a bystander.
Distinguishing by who was killed?

After the commission of a felony

People v. Gillis, p. 516 (FM, even after attempted commission)

attempted to burglarize home, while driving away, police tried to pull over and fled, accident
killed 2

Fleeing from burglary FM

Unrelated to felony

People v. Cabaltero, p. 517 (FM)

Lookout during robbery panicked, leader shot him. Other felons convicted of FM

Shooting helped ensure success of ongoing robbery

Voluntary Manslaughter Common Law

Voluntary: Intentional killing committed in sudden heat of passion as the result of adequate provocation (An unlawful killing of a
human being without malice aforethought)

Four basis elements

o 1. The actor must have acted in heat of passion (subjective)
o 2. The passion must have been the result of legally adequate provocation (objective)
o 3. The actor must not have had a reasonable opportunity to cool off
o 4 (There must be a casual link between the provocation, the passion, and the homicide)

1. The actor must have acted in a sudden heat of passion (Subjective)

o The actor must be in a state of passion at the moment of the homicide
2. The passion must have been the result of legally adequate provocation (objective)
o Traditional common law categories

(1) Aggravated assault or battery;

Girouard: Words are never enough no matter how insulting

(2) mutual combat;

(3) Commission of a serious crime against a close relative of the defendant;

(4) Illegal arrest (old concept); and

(5) Observation of spousal adultery

Dennis: must have actually seen intercourse not just an embrace

Simonovich: past adultery not relevant

Turner: must be legally married

o Modern Common Law (minority)

Jury is allowed to decided what is sufficient provocation

Test: Is the unlawful provocation such that it is calculated to inflame the passion of a reasonable [person] and
tend to cause [that person] to act for the moment from passion rather than reason

Reasonable Person

The person is of average disposition, i.e. not exceptionally belligerent; sober at the time of the
provocation; and of normal mental capacity

The actors situation

(1) Measuring the gravity of the provocation to the reasonable/ordinary person; and

(2) In assessing the level of self-control to be expected of a reasonable/ordinary person


Tried to blend both objective and subjective --- compare to England which allows much more leeway
Maher: D saw wife go to woods with another man and knew they were having sex - Rule: Was D
disturbed/obscured by passion which might render ordinary men liable to act rashly/without due deliberation or
reflection and from passion rather than judgment

3. The actor must not have had a reasonable opportunity to cool off
o The defense involves sudden heat of passion. The defense is unavailable if a reasonable person would have cooled off in the
time that elapsed between the provocation and the fatal act
o The provocation defense could not successfully be asserted by one who brooded over the provocation before acting
o Bordeaux: (cool off) V told D earlier in the day that he raped his mom later that night beat him to death
o LeClair: (cool off) man suspected wifes infidelity for a couple weeks, once confirmed strangled her
o Berry: (jury ?) 20 hours waiting for V could aggravate smoldering passion

4. Casual link between provocation and killing

o Motivation for homicide must be the provocation alone
Involuntary Manslaughter: Criminal Negligence

A homicide is manslaughter when a person does an act, lawful in itself, but in an unlawful manner and without due caution and
circumspection.

Criminally negligent manslaughter is involuntary manslaughter (a lesser offense to sudden heat of passion aka voluntary
manslaughter)
o Terms: gross negligence recklessness or criminal negligence
o Involves a gross deviation form the standard of care that reasonable people would exercise in the same situation
o Much stronger than tort negligence
o **Look out of omissions

Difference with Depraved Heart

o One who is aware that he is taking a substantial and unjustifiable risk to human life, but proceeds anyway, manifests an
indifference to the value of human life that constituted malice aforethought; one who should be aware of the risk but is not,
is negligent
o E.g. One who playfully fires a gun that he knows has bullets in it, in the direction of another person, may be convicted of
murder, if the same person performs the same act incorrectly convinced that the gun is unloaded, he is guilty of
manslaughter.

Welansky: night club owner, more than civil negligence, disregard a known risk (too stupid)


Hall: skiing accident, sufficient to go to jury (speed just for fun, expert, infer awareness)

Williams: negligence is the standard, education level is not relevant

Walker: treatment with prayer can be a defense unless the condition is life-threatening
Misdemeanor-Manslaughter

An accidental homicide that occurs during the commission of an unlawful act not amounting to a felony (or, at least, not amounting to
felony that would trigger the felony-murder rule) constitutes common law involuntary manslaughter.

Rule: A misdemeanor resulting in death can provide a basis for an involuntary manslaughter conviction without proof of recklessness
or negligence
o Requires proximate cause. See Commonwealth v. Williams (failure to renew license, no casual connection to accident)

Criminal Homicide MPC

Murder (MPC)

Actus Reus
o Causing the death of another human being

Mens Rea: 210.2(1)(a)-(b): A criminal homicide constitutes murder when the actor unjustifiably, inexcusably, and in the absence of
mitigating circumstance, kills another
o (1) Purposely or knowingly; or
o (2) Recklessly, under circumstances manifesting extreme indifference to the value of human life

Felony Murder 210.2(1)(b): MPC provides that extreme recklessness (and this murder) is non-conclusively presumed if the
homicide occurs while the actor is engaged in, or is an accomplice in, the commission or attempted commission of, or flight from, one
of the dangerous felonies specified in the statue
o E.g. Under this provision, if D unintentionally kills V during the commission of a robbery, the jury should be instructed that
it may, but not need, infer extreme recklessness from commission of the crime.
o If the felony was no committed in a manner that manifested an extreme indifference to the value of human life, the felon is
not guilty of murder for the resulting homicide.
o Presumed felonies: robbery, rape, arson, burglary, kidnapping or felonious escape
Manslaughter (MPC)

210.3(a)-(b): A person is guilty of manslaughter if he:

o (1) Recklessly kills another; or

(2) Kills another person under circumstances that would ordinarily constitute murder, but which homicide is committed as
the result of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse.
No unlawful-act (misdemeanor-manslaughter) rule
1. Recklessly kills another
o Reckless Definition:
o Murder v. Manslaughter: *The difference between the two offenses is that, in the case of murder, the recklessness must
manifest extreme indifference to the value of human life
o **Sharp contrast from common law, liability for manslaughter under the Code cannot be founded on criminal negligence.

MPC believes that no person should be convicted of an offense as serious as manslaughter in the absence of
subjective fault e.g. conscious disregard of a substantial and unjustifiable risk
2. Homicide is committed as the result of extreme mental or emotional disturbance for which there is a reasonable excuse
( 210.3(b))
o The reasonableness of the explanation or excuse regarding the EMED is determined from the viewpoint of a person in the
actors situation under the circumstances as he believes them to be.
o Subjective Component

The EED the extreme mental or emotional disturbance

This condition need not involve a state of mind so far from the norm as to be characteristic of a mental illness.

Instead it is enough that the D experienced intense feelings, sufficient to cause loss of self-control, at the time of
the homicide

Very broad concept that can easily be established

o Objective Component

There must a reasonable explanation or excuse for the EED

It is critical to observe, however, that this standard is the objective to the mental or emotional condition, and not to
the homicide,

i.e. the defense is not based on the ground that there is a reasonable explanation or excuse for the homicide, but
rather that there is a reasonable explanation or excuse for the EED that caused the actor to kill.

Casassa: EED need not be spontaneous, prolonged disturbance

Reasonableness is determined by subjective situation and objective reaction to that situation

o

Negligent Homicide MPC

210.4: A criminally negligent homicide involuntary manslaughter at common law constituted the lesser offense of negligent
homicide under the Code.

Done with negligence

Attempt: Common Law

In General
o Inchoate (incomplete): the points in between conceiving an idea of committing a crime and completing the criminal goal
o complete but imperfect: occurs when the actor performs all of the acts that he set out to fo, but failed to attain his criminal
goal

e.g. fires weapon and misses

o incomplete: In contrast, an incomplete attempt occurs when the actor does some of the acts necessary to achieve the
criminal goal, but quits or is prevented from continuing e.g. a police officer arrives before completion of the attempt
o Elements

Specific intent (purpose) to commit the underlying crime

Mens rea of the underlying crime

Actus Reus
o Inchoate crimes in disguise: Burglary- fully consummated burglary is inchoate to a theft or to some other crime intended to
be committed on the inside of the dwelling allows police to intervene sooner

Mens Rea (dual)

o 1. Must intentionally commit the acts that constitute the actus reus of an attempt (intentionally perform acts that bring D in
proximity to commission of a substantive offense)
o 2. D must perform these acts with the specific intention (purpose/knowledge?) of committing the target crime

Even if the target offense is a general-intent crime

o Result Crimes

For crimes of this nature, the ordinary rule if that a person is not guilty of an attempt unless his actions in
furtherance of the prohibited result are committed with the specific purpose of causing the unlawful result

Mens Rea is often higher for the attempt than the substantive offense

E.g. Depraved heart murder: There is not specific intent, therefore there is no attempted murder

No attempted felony murder

o Conduct Crimes

Crimes whose actus reus are defined in terms of conduct rather than injurious results

E.g. reckless endangerment punished dangerous conduct, even if such endangering conduct does not result in
further physical harm

There is no reason why a person should not be convicted of an attempt to commit a conduct crime, as long as he
possess the specific intent to engage in the conduct

E.g. if arrested prior to driving with blindfold on, attempted reckless endangerment
o Attendant circumstances (Parity)

Parity: Most agree that specific intent with respect to attendant circumstances should not apply

Some think you should be reckless to the attendant circumstance

E.g. statutory rape: attendant circumstance of age be reckless to the age rather than strict liability
Actus Reus
o Proximity Test: acts must be proximate and near to the consummation

Need to be in dangerous proximity to success or when an act is so near the result that the danger of success is very
great

Rizzo: no attempt looking around for victim but could not find him- not proximate because there was no victim

McQuirter: attempted rape benign conduct can be the basis of proximity test hard to distinguish actual
intention/purpose convicted only by the testimony of others

Con: hard on lawenforement

o Unequivocality Test: acts must unequivocally show criminal intent

Movie with the sound off can you tell from actions alone without context

An attempt occurs when a persons conduct, standing alone, unambiguously manifests his criminal intent
Barker: buying a box of matched to burn a haystack is too ambiguous to justify conviction for attempted arson, but
he who takes the matched to a haystack and there lights one acts ambiguously

Guilty only when he lights one and blows it out because someone is watching

Problem: still might be lighting a pipe

Impossibility Defense
o Factual Impossibility

When a persons intended end constituted a crime, but he fails to consummate the offense because of an attendant
circumstance unknown to him or beyond his control

There is a mistake regarding some fact relating to the actor, the victim, and/or the method of commission.

Greenberg Rule: Result or conduct element not satisfied

Had the circumstances been as the actors believed them to be, or hoped that they were, the crime would have been
consummated

Never a defense

inherent factual possibility: method of accomplishment is completely inept - voodoo attempt may not be
punishable
o Pure Legal Impossibility

Pure legal impossibility is a defense

Arises when the law does not proscribe a crime for the goal that the D sought to achieve

Cannot be convicted of an attempted fantasy crime or if a statue has been repealed

o Hybrid Legal Impossibility

If the actors goal is illegal, but commission of the offense is impossible due to a factual mistake (and not simply a
misunderstanding of law) regarding the legal status of some attendant circumstance that constituted an element of
the charged offense

E.g. receiving un-stolen property, offers bribe to a juror, shoots a corpse

Whats missing is an attendant circumstance completely you cant bribe a juror is the circumstance of being a
juror is not there

Greenberg Rule: Circumstance element is not satisfied

Attempt MPC

In general
o Focuses on the criminals mens rea significant effect on American Law
o Elements

(1) Purpose to commit the target offense

(2) Conduct constituting a substantial step toward the commission of the target offense
o 5.01(1): A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for
commission of the crime, he

(a) purposely engages in conduct that would constitute the crime if the attendant circumstances were as he
believes them to be; or

(b) when causing a particular result is an element of the crime, does or omits to do anything with the purpose of
causing or with the belief that it will cause such result without further conduct on his part; or
(c) purposely does or omits to do anything that, under the circumstances as he 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.
o **Questions

does the case involve a complete or incomplete attempt?

If the case involves a complete attempt, is the target offense a result crime or a conduct crime
o (1)(a) and (1)(b) pertain to completed attempts

(1)(a): completed conduct offense

(1)(b): completed result offense

o (1)(c) pertains to incomplete attempts

(1)(c): Must be read in conjunction with 5.01(2) which elaborated on the meaning of substantial step

Mens rea
o Completed result crime [(1)(b)]: expressly states that a person is guilty of an attempt to cause a criminal result if he believes
that the result will occur, even if it was not his conscious object to cause it
o Completed conduct crime [(1)(a)]: implicitly states that belief is enough

Attendant circumstances: acting with the kind of culpability otherwise required for the commission of the crime means
that the mens rea of purpose or belief does not necessarily encompass the attendant circumstances of the crime

For attendant circumstance elements, it is sufficient that the actor possessed the degree required to commit the
target offense

Parity
Actus Reus
o Focuses on what the actor has already done rather than what he has not done
o Incomplete cases (1)(c): are the focus because there hasnt been a full attempt made yet.
o Test: an actor must have done or omitted to do something that constituted a substantial step in a course of conduct planned
to culminate in his commission of the crime
o 5.01(2): provides further content to the imprecise term substantial step

Strongly corroborates the defendants criminal purpose

Aspects of unequivolcality test without the same stringency - the conduct does not by itself have to manifest
criminality

Strongly corroborative in all the light of all the circumstances, must add to the other proof of intent

Factors that cannot be deemed insufficient as a matter of law enumerated instances that must be allowed to go to
a jury

Lying in wait; searching for or following the contemplated victim of the crime; reconnoitering the
contemplated scene of the crime; unlawful entry into a structure of building in which the crime will be
committed; and possession of the materials to commit the offense, if they are specially designed for a
criminal purpose

This list is used exclusively by the judge, if it goes to jury they are asked if a substantial test was taken
Attempt to aid (complicity cross-over) 5.01(3)
Impossibility Defense: MPC
o 5.01(1) is designed to abolish the defense of hybrid legal impossibility

e.g. Completed conduct crime: attempted receiving of stolen property

based on (1)(a), D is guilty if he purposely engaged in conduct (receiving property) that would
constituted a crime if the attendant circumstances were as he believed them to be

e.g. Completed result crime: attempted murder

based on (1)(b), D is guilty of attempted murder is he shoots V, unaware that V is already dead. D is
guilty of attempted murder because he performed an act firing a gun at V with the purpose of
causing or with the belief that it would cause such result [Vs death] without further conduct on Ds part
o

e.g. Incomplete attempt: taking aim at a corpse

based on (1)(c), D is guilty of attempted murder because he performed a substantial step towards the
crime that would have been murder if the circumstances were as he believed them to be
o (1)(c): Only in these cases does the actors conduct have to be strongly corroborative of the actors criminal purpose
o Pure legal impossibility: although not expressly provided, is still a defense

Abandonment Defense MPC

o Affirmative defense of renunciation of criminal purpose
o 5.01(4): A person is not guilty of attempt if:

(1) He abandons his effort to commit the crime or prevents it from being committed; and

(2) his conduct manifests a complete and voluntary renunciation of his criminal purpose
o Renunciation is not complete if it is wholly or partially motivated by a decision to postpone the criminal conduct until a
more advantageous time or to transfer the criminal effort to another but similar objective or victim.

Cant stop because too risky. Or, after a substantial step towards one crime cant shift focus and be exculpated
from the first crime
o Renunciation is not voluntary if it is partially or wholly motivated by circumstances, not present or apparent at the
inception of the actors course of conduct, that increase the probability of detection or apprehension or that make more
difficult the accomplishment of the criminal purpose.

E.g. being seen by a police officer and stopping or cant be freed if person being raped resists

Inherently Unlikely Attempts

o
5.05(2): grants a trial judge the authority to dismiss a prosecution of an inchoate offense, at impose a lower sentence, if the
actors conduct was so inherently unlikely to result in a crime that neither he nor his conduct represents a danger to society
justifying his conviction and punishment at ordinary levels
Complicity: Common Law

In general
o If Ps conduct does not proceed sufficiently far to constitute any offense, S is guilty of no offense as an accomplice. Since P
committed no substantive crime, there is no liability for S to derive from P
o S is usually also liable for any crime committed by P that was a natural and probable consequence of the criminal activity
o Principal in the 1st degree: is the person who, with the requisite mens rea

(1) physically commits the acts that constitute the offense; or (2) commits the offense by using an innocent
instrumentality or innocent human agent

Principal in the 2nd degree: One who is guilty of an offense by reason of having intentionally assisted in the commission of
the crime in the presence, either actual or constructive, of the principal in the first degree

Situated in a position to assist the principal in the first degree during the commission of the crime e.g. getaway
driver
o Accessory before the fact: Does not differ appreciably from a principal in the second degree, except that he is not actually
or constructively present when the crime is committed.
o Accessory after the fact: someone who helps after the commission of the crime has already been completed (minor
punishment)
Actus Reus
o Assistance with the requisite mens rea. Three forms of assistance

(1) assistance by physical conduct

e.g. S furnishing P with a gun, driving getaway car, locking a door, etc.

(2) assistance by psychological influence

e.g. S incites, solicits, or encourages

Proof of presence, coupled with a prior agreement to assist, will support a claim of encouragement, even
if such assistance is not rendered

(3) assistance by omission (assuming omitter has a duty to act)

In general, there is accomplice liability for not telling police of a crime before or during it is occurring,
unless the person has a duty to act
o Amount of assistance required

A person is not an accomplice unless his conduct (or omission) in fact assists in the commission of the offense.

Thus, S is not an accomplice in the commission of a robbery if he is present at the scene of the crime in
order to aid P if necessary, but his assistance is not called upon, and assuming there are no additional
facts to support a claim of assistance by encouragement

Likewise, S is not an accomplice of P if he performs an act to assist P, but his conduct is wholly ineffectual.

E.g. S is not an accomplice if he utters words of encouragement to P who fails to hear them, or if S
opens a window to allow P to enter a dwelling unlawfully, but P (unaware of the open window) enters
through a door

Once it is determined that S assisted P, however, the degree of aid or influence provided is immaterial. Any aid, no
matter how trivial, suffices
o Causation: S is guilty of an offense as an accomplice even if, but for his assistance, P would have committed the offense
anyway
Mens Rea
o

o
o
o
o
o

o
o

1. Purpose to aid or encourage

2. Specific intent to further the criminal action of the principal
Purpose: need specific intent you cant be guilty of aiding and abetting where you have no connection to the principal

E.g. Gladstone or landlord selling apartment to gambling ring

Conduct: (aiding/abetting) purpose to aid/abet (knowledge is not enough)
Results: parity

e.g. S should be treated as an accomplice in the negligent death. First, he intended to encourage P to engage in the
conduct that formed the basis of the offense, i.e. he intended to encourage P to drive at a high rate of speed on a
public road near a school, which speeding resulted in Vs death.

Second, it is reasonable to conclude that S was at least criminally negligent in relation to Vs death by encouraging
P to drive in this manner
Attendant circumstances:

Strict Liability awareness

Otherwise: parity or purpose (awareness or hope)

Exception: Natural and probable consequences

If S is an accomplice in the commission of a crime (crime A), he is also responsible for every other crime (e.g.
crimes B and C) perpetrated by the primary party that was a natural and probable consequence of crime A, the
target offense.

The second crimes must be within the normal range of outcomes that may be expected to occur if nothing unusual
has intervened
Questions to ask

Did P commit target crime A?

If yes, was S an accomplice in the commission of that offense?

If yes, did P commit any other crimes?

If yes, were these crimes , although not contemplated or desired by S, reasonably foreseeable consequences of
crime A
Problem: an accomplice may be charged of a crime intent (e.g. kidnapping) although his culpability regarding its
commission may be no greater than that of negligence.
Compared to felony murder: broader (more applicable than FM) but less deep (lower punishment)

Complicity MPC

2.06(1): Under the MPC, a person is guilty of an offense if he commits it by his own conduct or by the conduct of another person
for which he is legally accountable, or both
o a person can be convicted of an offense if he personally commits the crime, or if his relationship to the person who commits
it is one for which he is legally accountable

Nature of Accomplice: S is an accomplice of P in the commission of an offense if, with the requisite mens rea, he (1) Solicits P to
commit the offense; (2) aids, agrees to aid, or attempts to aid P in the planning or commission of the offense; or (3) has a legal duty to
prevent the commission of the offense, but makes no effort to do so
o Solicitation:
o Aiding:
o Agreeing to aid: S is an accomplice of P if he agrees to aid P in the planning or commission of an offense. This requirement
is met: e.g. if S tells P that he will help to plan the commission of the offense, or if he agrees to provide P with an
instrumentality for the commission of the crime, even if S does not fulfill his promise.
o *Attempting to aid: S may be liable as an accomplice of P in the commission of an offense if he attempts to aid in the
planning or commission of the crime, even if his aid proves ineffectual.

Relationship between 2.06 (complicity) and 5.01 (criminal attempt)

E.g. S provides P a gun in order to assist p in the commission of a robbery . If P performs the robbery, S is guilty
as an accomplice of P in its commission

Similarly is P, in the amidst of the robbery, is arrested before he can complete it, P is guilty of attempted robbery
under the Codes attempt provision. In turn, S would be guilty of attempt under the Codes complicity statute

However, if P is arrested before he takes a substantial step in a course of conduct intended to result in the robbery.
Under these circumstances, P is not guilty of attempted robbery. In this case S is not accountable under the
complicity statue, because the person from whom he would derive his liability committed no crime.

Nonetheless, S is guilty of criminal attempt by his own conduct (e.g. not through the doctrine of complicity), by
application of MPC 5.01(3), which provides that a person who engages in conduct designed the aid in the
commission of an offense that would establish complicit under section 2.06 if the crime were committed by such
other persons, is guilty of an attempt.although the crime is not committed or attempted by such other person

Ironic: S is guilty of attempted robbery; P, the primary participant, is not guilty of attempt

Mens Rea
o Conduct: 2.06(3)(a): a person is an accomplice of he assists with the purpose of promoting or facilitating the
commission of the offense

If S, a merchant, sells dynamite to P, with knowledge that P intends to use the explosives to blow open a safe, S is
not an accomplice in the subsequent crime, unless it was his conscious object to facilitate the commission of the
offense
o Result: 2.06(4): when causing a particular result is an element of a crime, a person is an accomplice in the commission of
the offense if

he was an accomplice in the conduct that caused the result and

he acted with the culpability, if any, regarding the result that is sufficient for commission of the offense
o Circumstances: left to interpretation
o Natural-probable-consequences: no common law doctrine

e.g. suppose that S aids P In the commission of a bank robbery by furnishing P with the details of the bank
securitys system. Later, P steals an automobile, which he uses as his getaway car in the robbery. Although S is an
accomplice of P in the commission of the robbery (he aided P with the purpose of promoting that offense) he is
not an accomplice in the commission of the theft: although the theft may have been a foreseeable consequence of
the offense in which he was an accomplice, he did not purposely aid in the car theft